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Book Wj^_ 



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NET 'BOOK NOTICE 

It is intended that this book be sold to the public 
at the advertised price, and is supplied to the 
trade on terms that will not allow of discount 

The Engineering NeWs 'Book Dept. 



SPECIFICATIONS 

AND 

CONTRACTS 



A SERIES OF LECTURES DELIVERED 
BY 

J. A. L. WADDELL, C.E., D.Sc, LL.D., 

Author of "De Pontibus," Etc. 



INCLUDING EXAMPLES FOR PRACTICE IN 

SPECIFICATION AND CONTRACT 

WRITING, TOGETHER WITH 

NOTES ON THE LAW 
OF CONTRACTS 

By JOHN C. WAIT, M.C.E., LL.B., 

Author of "Engineering and Architectural Jurisprudence," Etc. 



NEW YORK 

THE ENGINEERING NEWS PUBLISHING COMPANY 

1908 



^^ 



<?, 



xT^ 



y 



V 



I LIBRARY of CONSRESSi 
Two Copies Received 1 

DEC 24 i 90? 

Copyrignt tntry | 

CLASS 4 XXc. NO 
I COPY B 



LJ 



Copyright, 1907, 

BY 

THE ENGINEERING NEWS PUBLISHING CO. 




PUBLISHER'S PREFACE. 



Soon after Dr. Waddell's lecture on "Engineering Contracts" 
appeared in The Polytechnic a large portion of it was copied by 
Engineering News, and at the same time one of the editorial staff 
of the latter paper wrote him offering to bring out the lecture in 
pamphlet or book form. Dr. Waddell replied that he had already 
made arrangements for publishing the lecture in pamphlet form for 
complimentary distribution; but suggested that a book containing 
not only the lecture referred to, but also his previous one on 
"Specifications," supplemented by data for numerous examples for 
specification, and contract writing by students, and supplemented 
perhaps also by notes by his friend, Mr. John Cassan Wait, the well- 
known attorney and author, might prove useful in engineering 
schools. 

In view of Dr. Waddell's peculiar and characteristic method of 
treating both subjects, in that he deals with the theory or science of 
preparing these technical documents rather than by following the 
ordinary method of making numerous and copious quotations from 
similar documents actually prepared and used, the editors of 
Engineering News adopted immediately his suggestion and arranged 
with both Dr. Waddell and Mr. Wait for the preparation of the 
necessary manuscript. 

The publishers believe that this little book, if generally used as a 
text-book in engineering schools, and if each student thereof is 
required to prepare by its means a complete specification and an 
exhaustive contract based on the "Examples" given, would do more 
than any other text-book or combination of text-books to perfect 
young engineers in the writing of technical documents. 

Dr. Waddell stipulated that the price of the book should be kept 
as low as possible, so as to make its purchase no hardship for the 
students; and this has been done. 

It is sincerely hoped by all concerned that the work will 
effectively accomplish the sole object of its writers and publishers — 
viz., the advancement of the engineering profession in one of its 
most important lines. 

The Engineering News Publishing Company. 

220 Broadway, New York. 
December 1, 1907. 



CONTENTS. 



Specifications ......... 1 

^Examples for Practice in Specification Writing ... 48 

Engineering Contracts ^. . . . . . .60 

Examples for Practice in Contract Writing . . . . 110 

Notes on the Law of Contracts ...... 130 

Index 169 



Specifications. 



A Lecture Delivered to the Senior Class of the Kensselaer 
Polytechnic Institute on April 30, 1903. 



Thus far, in addressing you, young gentlemen, I flatter myself Introduction 
that I have interested you and held your attention fairly well; but 
now I am going to risk losing the prestige that I think I have 
gained among you, by giving you a long, tedious talk on the dryest 
of all dry, technical subjects — specifications. 

Dry, however, as the subject may be, there is no other of greater 
importance in engineering practice; hence I feel that I would not be 
doing either my duty by you or justice to myself were I to spare 
you the infliction of this last lecture, merely for the sake of trying 
to leave on your minds the impression that I am an interesting 
speaker. It will therefore be necessary for you to take your medi- 
cine philosophically, and I am going to ask you to give me your 
closest attention and to endeavor to interest yourselves in all that 
I say, notwithstanding its extreme dryness. 

The substance of this discourse was blocked out a month ago 
by Mr. Ash, one of the assistant engineers of my flrm, and by myself 
working jointly; it was then partly written and delivered by him 
to the engineering students of the Missouri State University. Since 
then I have revised and enlarged the lecture considerably for your 
special benefit. 

Between the individual or corporation desiring the work done Status of Engineer 
and the contractor who performs it, stands the engineer who has 
designed it and who usually superintends its execution. He is in 
the employ of the persons promoting the enterprise, and it devolves 
upon him to make sure that those who retain him receive an honest 
and fair return for their money. While it is true that he is 
employed by only one of the parties to the contract, he should not 
be partisan, but should strive to see that fairness to both is secured. 
The engineer should not be an enemy to the contractor, but should 
work in harmony with him, and should do all he can to further 
the rapid and harmonious completion of the work, being careful, of 



2 SPECIFICATIONS AND CONTRACTS. 

course, to see that nothing is done which will in any way result in 
an inferior construction. As the engineer's decisions are final (unless 
it can be shown that actual fraud exists)/ it behooves him to be 
careful that no injustice is done to any one. 

Specifications De- In order that the contractor may understand the scope of the 

work to be performed and the details of its construction, a written 
description and plans more or less complete, defining the methods 
of construction, material, etc., to be used, are prepared by the 
engineer for the approval of the company having the work done 
and for the guidance of the contractor. These written documents 
are the specifications, and together with the contract, of which they 
form a part,^ they fix definitely the relations that shall subsist 
between the company or corporation and the contractor. 

Plans, Utility of To build a structure, no matter how simple, there must be a 

plan, if it is to be constructed intelligently and efficiently. As the 
size and importance of the structure increase, the plan grows more 
and more complex, and hence the greater necessity for putting it in 
some fixed and definite form which shall convey the exact idea 
existing in the mind of the engineer. To secure the proper execu- 
tion of a work of any magnitude, specifications are absolutely 
necessary, and they should be prepared with great care and exact- 
ness. For convenience of reference and for clearness, they are 

Specifications, Prep- usually divided into clauses, which may be classed as general and 
aration 

specific. General clauses refer to the business relations that shall 

exist between the parties to the contract. In them is found the 

general description of the work as a whole without any particular 

reference to details. Times and methods of making payments, 

adherence to specifications, inspection, and other analogous headings 

make up their subject matter. They should be comprehensive in 

their scope, and should not contradict one another. It is well to 

avoid a double description of any particular thing. Contradictory 

clauses are sure to be a stumbling block that will create friction and 

cause delay. At first glance one would say that such clauses are easily 

eliminated, but care is necessary to accomplish this. For instance, 

a certain result may be desired in the substructure of a bridge that 

will not fit in with the kind of superstructure wanted.' 

Specific clauses have to do with the details of construction and 

the description of particular features of design. They embody the 



* Wtien it is expressly so provided, as is usually the case. 

* They should be declared to be so. 

' These general conditions, describing the general relations of the parties, 
their duties, and general obligations are best embodied in the contract. 



SPECIFICATIONS AND CONTRACTS. 3 

special ideas that the engineer wishes to incorporate in the work, 
and they should be just as minute in detail as is requisite to set 
forth the exact plan desired. Detailed drawings may be necessary Detail Drawings 
to indicate clearly just what is to be done, and these drawings 
either should be prepared before the specifications are written, or at 
least should be sufficiently matured in the mind of the engineer to 
enable him to write his specifications in accordance with them. It 
must be remembered that the specifications and plans constitute a 
guide-book for the contractor and for the resident engineer. They 
should tell what must be done, but should not necessarily state just 
how it should be done. Specifications should look to the accom- Speciacations, Pur- 
plishment of an end rather than to the means of its attainment. Of 
course, there are exceptions to this, as when the engineer believes 
that for the best results certain work must be performed in some par- 
ticular way, in which case it is necessary to incorporate the method 
in the specifications. It must be remembered that under these Guaranty of Results 
circumstances the contractor cannot be held responsible for the 
mistakes of the engineer. When an engineer specifies that a thing 
shall be done in a certain way, he must assume the responsibility of 
the outcome, because the contractor is not free to adopt the method 
lie thinks best suited to the case in hand.^ For this reason specifica- 
tions should leave the method, as far as can be done consistently, to 
the contractor, and instead should dwell upon the end to be attained. 
A good contractor who is active and progressive may frequently 
wish to introduce methods of construction better than those con- 
ceived by the engineer, and it were a poor set of specifications which 
would prevent his doing so. A specification can readily be very 
strict concerning the finished work and at the same time very 
liberal as to the methods to be employed in its accomplishment. 

It frequently happens that specifications are written without pians Prepared by 

,, -r , ... , , . Contractor 

any accompanying plans at all. In such cases it is usual to require 

hidders to submit with their tenders plans more or less detailed of 

wrhat they propose to do. In this way the engineer may make a 

choice from various plans presented and thus obtain what he 

considers the best of a number of ideas. Specifications of this kind 

will have, of course, very little or nothing at all to do with the 

details involved, but will be concerned almost entirely with the final Specifications of Re- 

suits 
desired outcome. In other words, such a specification will consist 

Tery largely of general clauses, those of a specific nature being either 



^ The engineer may not specify in detail and tlien exact a warranty as 
to results. The law will not imply a warranty. 



SPECIFICATIONS AND CONTRACTS. 



Specialists 



Good Specifications 



Specifications 
elusive 



Con- 



entirely eliminated or reduced to a minimum. This method of 
letting contracts without any accompanying plans is by no means 
to be commended.^ A good engineer does not want other people 
to tell him what to use or what to do. If he is thorough and well 
posted in ' his profession, he is not going to let his own ideas be 
superseded by those of a contractor who furnishes plans with his bid. 
In such a case the engineer becomes only an inspector, who simply 
passes upon the work and determines whether or not it fulfils 
requirements, when perhaps much of the work is entirely at variance 
with his own ideas. It is reasonable to suppose that an engineer 
who devotes his entire time to designing structures of a particular 
kind (and no one man will attempt to cover the entire field), i& 
more capable of arriving at the best design for a given case than a 
contractor who is engaged in work of a varied nature, and whO' 
perhaps has given little or no thought to the designing of the 
particular kind of structure upon which he desires to tender. It is- 
undoubtedly a fact that the best results are accomplished when the 
plans and specifications are prepared by a competent engineer, and 
when the bidder is governed by their requirements.^ 

Let us consider some of the salient features of good specifica- 
tions. Primarily, they should give a clear and concise description 
of the work, first when considered as a whole, and then in detail, no' 
part being slighted in this description. It will not answer for the 
engineer to suppose that the contractor will do things as a matter 
of course, but he must produce a specification that will insure their 
being done. A contractor, if he be thoughtful and careful, will pay 
close attention to every detail set forth in the specifications, and he 
should make his bid, expecting to fulfil just the requirements 
enumerated in them, no more and no less. If he be wise, he will 
not bid with the expectation of having them changed to conform 
to his convenience or his notions of what is best. The engineer is' 
supposed to have stated in his specifications just what he wants, and 
no prudent contractor will tender, expecting his own ideas to prevail. 
If, then, upon the engineer devolves the responsibility of determining 
the work to be done, it will be readily seen that it behooves him to 
cover the entire ground in his specifications. He should give special 
attention to the points he intends to require absolutely without 



^ It may be prohibited by statutes, charters, and ordinances which require 
a standard of comparison and public competition. 

- Such a practice is sometimes adopted to meet statutes requiring public 
competition, where the structure or machine is the subject of a monopoly — 
as of letters patent. 



SPECIFICATIONS AND CONTRACTS. 5 

alteration and should leave no possibility for doubt in the mind of 

the contractor as to what will be expected concerning them. He 

should be careful to set forth clearly the units of measure to be 

employed and what is to be considered a part of the finished work, 

as distinguished from what is merely accessory.^ If extra work is Extra Work Defined 

to be performed, the amount of which it is impossible to determine 

in advance, the greatest care should be exercised in defining clearly 

just what shall constitute such extra work and in fixing the 

compensation for it. Failure to do this is frequently a source of 

trouble and annoyance that might be avoided by careful wording. 

Specifications should be designed to secure the best results When Results are 

Wanted 
consistent with what is considered good practice. It is possible 

to make requirements of such a nature that to fulfil them would 

mean an enormous outlay of money not at all proportionate to the 

result. Such clauses in a specification make a bidder uneasy and 

will cause him to add to his bid a sufficient amount in addition to 

his profit to insure him against loss. A bidder should make his 

tender expecting to comply with the conditions of the specifications, 

and expecting that his fellow bidders will do the same, and a clause 

that involves an unduly strict condition is liable to cause him either 

to tender high or to bid hoping that its fulfilment to the letter will 

not be demanded. In nine cases out of ten such a clause will bo 

dearly paid for. 

Absolute perfection is not to be expected, but the very best that Advantages of La- 

cality and Market 
the most approved practice will afford should govern the require- 
ments. An engineer must lose prestige if he specify things which 
cannot consistently be done, and by inserting such requirements he 
works injury to all parties concerned. In the matter of materials 
to be used he must be governed by the locality and by what the 
market has to offer. He may be unable to get just what he would 
like; therefore he must use the best that can be obtained. These 
remarks do not imply that the engineer should be satisfied with 
any makeshift that is offered. He can rest assured that he will not 
receive anjihing better than he demands, and he is fortunate if he 
succeeds in getting everything as good as he specifies. As he is a 
large factor in determining what shall be considered good practice, 
he should not be content to put up with shoddy stuff when better 
can be obtained. As in all business relations, moderation with 
firmness should govern. 



^ False works should not usually be made the subject of public letting, 
as for public Improvements. 



.6 



SPECIFICATIONS AND CONTRACTS. 



Language of Specifi- 
cations 



Sevei-al Contractors 



Favoritism 



Again, specifications should be written in simple, plain language 
without any attempt at rhetoric. All verbs should be complete, and 
no words should be omitted on the assumption that they are under- 
stood. Of course, the law will interpret a contract or a specification 
in accordance with what the court decides is its spirit,^ but an 
engineer should not rely upon this to guard against omission. If 
the specifications are properly prepared, there should be no 
occasion for appealing to the courts to decide what is or is not the 
spirit intended. While such documents should be comprehensive, 
they should not be verbose, and, above all things, they must not be 
ambiguous. Short sentences and simple words are preferred. 
Punctuation and grammar, while usually and erroneously considered 
of minor importance in an engineer's practice, certainly play an 
important part in this particular kind of literature. The meaning 
of a sentence can easily be distorted, or even entirely changed, by 
the placing of a comma. Do not fear to repeat the same words or 
phrases over and over again in your specifications, if you find they 
best convey the idea you have in mind. This may involve occasion- 
ally some lack of euphony, but that can very readily be dispensed 
with in writings of such a prosaic nature. 

Should more than one contractor be employed upon a piece of 
work, great care must be exercised to define clearly the duties of 
each. Just where one is to finish and the other is to begin should 
be set forth so as to. leave no possibility of doubt. When practicable 
in such cases, separate and distinct specifications for the different 
parts of the work should be prepared. Care should be taken that the 
same thing is not required of both contractors, and that one con- 
tractor is to leave his part of the work in such shape as to involve 
no hardship or inconvenience for the one who is to follow. As an 
illustration of cases of this kind, in bridge work it frequently 
happens that one contractor will do the substructure work while 
another will build the superstructure. It is then necessary to 
specify who is to set the anchor bolts and anchorages. 

The engineer must be careful about putting anything into his 
specifications that has even the appearance of favoritism. He must 
be constantly on his guard to avoid this, for his position is such that 
his reputation is liable to suffer if he deviate in the least from 
Strict fairness to all. It is bad policy, generally speaking, to require 
a particular brand of material or the product of a given firm 
without stating that other material will be accepted, if, upon testing. 



1 The intention of the parties. 



SPECIFICATIONS AND CONTRACTS. 7 

it be found of equal quality. When a given brand is well-known 
and has an established reputation, it is sometimes proper to specify 
that it shall be used to the exclusion of other makes, but usually 
it is best to set a standard which is commensurate with the best 
product to be had, and then to accept any brand which meets the ' 

requirements.^ An exception to this rule is permissible when speci- Commercialism 
fying paint for metal-work, because, unless the particular brand 
be stated, the contractor is liable to give endless trouble by offering 
for test inferior brands, and the result is very likely to be the 
adoption of a paint that is not really satisfactory. Unscrupulous 
parties are ever ready to give the engineer a bonus in case he use 
their product, and that engineer is fortunate who has an extensive 
practice and is yet entirely free from all charges of peccability. 
Where one man's product is rejected and another's used, there is a 
great temptation on the part of the disappointed person to question 
the fairness of the proceeding. An engineer once guilty of crooked- 
ness is badly handicapped, and justly so, for no man wishes to 
entrust the expenditure of his capital to one who is not absolutely 
above suspicion.^ 

To insure all the conditions that have been enumerated, it is Engineer's Prepara- 
tion 

evident that the engineer must familiarize himself with every detail 

of the work in hand. If he does not understand it himself, it is ' 

certain that he will not succeed in getting a clear idea of what he 

wants into the mind of another. Even when the scheme is perfected 

in the engineer's mind, it is difficult sometimes to make it plain to 

the contractor. 

It will not do to jump at hasty conclusions, for very often Changed Conditions 
one finds that an idea, which at first seemed to be just what was 
wanted, proves utterly untenable when considered in connection 
with other ideas that must be incorporated in order to produce a 
finished construction. No idea for a specification has any value 
until it has been fitted into the proposed structure, and is found to 
harmonize with all the other requirements. 

It is usual and proper in specifications to insert a clause allowing Alterations 
the engineer the privilege of changing them or the plans as the 
work progresses, but it is desirable for all concerned that the 
number of these changes be reduced to a minimum. A perfect set 
of specifications would render such a clause useless, but since we 



^ If materials are specified by name and not by tests or results, the con- 
tractor can be held only to deliver the brand or kind named. 

"^ Commercialism in engineering practice is pretty certain to arouse sus- 
picion. 



8 



SPECIFICATIONS AND CONTRACTS. 



Precision 



Prior Negotiations 
not Pertinent 



Concealment of 
Facts 



have not yet attained to perfection, we must have some means of 
recourse, bearing in mind, however, that the more such a clause 
as the one referred to is brought into use, the farther we are from 
the ideal/ 

The question of precision is one which should never be lost 
from sight. If the engineer is to maintain his prestige, he must be 
precise. It will not do for him to say "about this" or "about that," 
for the "about" is very liable to assume proportions which were 
never dreamed of when the term was used. Of course, there are 
times when it is neither necessary nor desirable to be absolutely 
exact in requirements, but generally speaking the word 'about" 
has very little place in a set of specifications. What is put into 
them is placed there with the idea that it is to be operative and 
binding in the construction of the work, and it is the duty of the 
engineer first of all to impose no impossible or unwise conditions,^ 
and next to see that what he has required is fulfilled to the letter. 

The specifications form a part of the contract,^ and when the 
latter is signed, the contractor agrees to ail the conditions they set 
forth. It is proper to assume that he has read the specifications 
and is familiar with their requirements, and that he signs the con- 
tract and makes his bond with the full knowledge of what is before 
him.* A specification should never hide from the contractor difficul- 
ties that are likely to be encountered. On the contrary, when such 
difficulties are known to the engineer, they should be specially called 
to the contractor's notice, so that he may bid more intelligently. 
His attention, however, should not be drawn to them in such a way 
as to frighten him and to cause him to make a bid abnormally high, 
but the facts as they exist and are known to the engineer should 
be stated. As in all relations in life, straightforward, fair-and-square 
dealing is by far the best policy. No railroad company or other 
corporation is benefitted by letting a contract for a sum below the 
actual cost, plus a reasonable percentage for profit, since the delays 
incident to the contractor's failure, and the litigation that is likely 
to arise will more than counterbalance the supposed saving. No 
contractor who is losing money is going to make the same exertion 
to accomplish his task properly as one who realizes that he is 
earning a fair profit. 



1 Powers of an engineer to make changes should be limited to the details 
of construction and of materials. 

2 And as few ir the alternative as possible. 

3 They should be made so by the text. 

* He may be held to the terms, if he has not read them. 



SPECIFICATIONS AND CONTRACTS. 9 

In spite of every precaution that may be taken, it is almost Engineer's Mistakes 
impossible to avoid mistakes entirely. A given proposition may 
appear to the engineer in his office, before work has commenced, very » 
-different from what he finds it in the field after the construction has 
begun. When an engineer discovers that he has made a mistake, he 
should not hesitate to acknowledge it, and to set about, as best he 
may, to correct the error. He should lose no opportunity to check 
against errors, and should be thankful when they are discovered in 
time to prevent harm. To reduce mistakes to a minimum, the 
engineer must be thoroughly conversant with all contingencies likely 
to arise in the execution of the work. He should familiarize him- 
self with the appliances ordinarily employed, and should so design 
his work that their use will not be prohibited. In writing his specifica- 
tions and in making the plans, he should have a clear and complete 
mental picture of just what he is striving to attain. It must be 
remembered that if the specifications are lived up to, they will 
entirely determine the result, and that it is the plans and specifica- 
tions wherein the creative power of the engineer asserts itself. 

Finally, when all is said and done, common sense must govern ultimate Object 
the interpretation and execution of any set of specifications. All 
should have but one object in view — the production of a structure 
that will be a credit to every one concerned. 

Up to this point I have been dealing mainly with generalities. General and Special 
^ ^ o ^ Provisions 

but now I shall go more into detail, taking up first general clauses 
and later specific ones. These general clauses will be ample for all 
engineering specifications, and can therefore be used for all kinds 
of engineering construction; but it would be impossible to cover 
the entire ground of specific clauses, consequently I shall simply 
■quote some characteristic ones from specifications for different kinds 
of construction, and point out some of their peculiar features and 
raisons cVetre. Naturally, in offering you examples of specifications, 
I shall utilize some of those prepared by my firm, and shall trust 
that you will pardon me for so doing, because I am responsible for 
them, while, of course, I could not be accountable for the correctness 
of everything in case I were to quote from the specifications of .other 
engineers. In order to present to you a wide range of specific Subjects for Study 
clauses, I shall make extracts from specifications for bridge super- 
structures, bridge substructures, steel lighthouses, an ocean pier, and 
a steel pipe-line. From a study of these you will be aided materially 
in the preparation of specific clauses for any class of construction 
lOn which you may be engaged. 



10 



SPECIFICATIONS AND CONTRACTS. 



Ground Covered by 
Thorougia Bridge 
Specifications 



Titles 



Specifications to be 
Followed 



But first, in order to give you an idea of the ground which a 
thorough set of specifications must cover, let me read to you the 
alphabetical list of headings in our "Specifications for the Rebuilding 
of Ten Bridges on the International and Great Northern Railroad": 

Accompanying Drawings; Adherence to Specifications; Altera- 
tion of Plans; Anchor-Bolts; Annealing; Approximate Quantities; 
of Materials, etc.; Back Filling; Bank Protection; Bending Tests; 
Bond; Built Members; Caissons Sunk by Pneumatic Process; Cast 
Iron; Cast Steel; Cement; Closing Thoroughfares; Coffer-Dam 
Work; Company; Composition of Rolled Steel; Concrete; Concrete 
Piers and Abutments; Construction; Contract; Damages; Defective 
Work; Depths of Foundations; Directions to Contractor; Drawings; 
Drifting Tests; Dry Surfaces in Concrete; Elastic Limits; Elonga- 
tion; Encountering Obstacles; Engineer; Excavation; Extras; Eye- 
Bars; Falsework; Field Riveting; Filling Column Feet; Final 
Inspection; Floors; Fracture; General Description; General Pro- 
visions on Methods of Testing; Granitoid; Hauling over Company's 
Lines; Identification; Inspection; Interference with Traffic; Liqui- 
dated Damages; Location; Loss of Metal; Metal; Modus Operandi 
of Construction; Name-Plates; Number of Test Pieces; Paint; 
Painting; Payments; Pile Foundations; Piles; pin-Holes; Pin 
Metal; Pins; Position of Piers, Pedestals, and Abutments; Prices 
of Materials; Punching and Reaming; Reduction of Area; 
Re-Entrant Corners; Removal of Old Piers; Responsibility for 
Accidents; Return of Papers; Rivet-Holes; Rivets; Rolled Steel; 
Rollers; Routing of Materials; Scope of Contract; Sheared Edges; 
Shipping; Spirit of the Specifications; Steel Cutting Edges; 
Strictness of Inspection; Tenders; Tensile Strength; Tests of Full- 
Sized Eye-Bars; Tests of Full-Sized Members or Details; Timber; 
Time of Completion; Turn-Buckles, Nuts, Threads, and Washers; 
Turned Bolts; Use of Old Rails; Variation in Weight; Workmanship; 
Wrought Iron. 

Although I have omitted ten headings that simply enumerate 
the various crossings, the list contains nearly one hundred clauses, 
only seventeen of which may properly be termed general. The latter 
I shall now proceed to read and discuss in the order in which they 
appear in this particular set of specifications. 

ADHERENCE TO SPECIFICATIONS. 
"All the work herein outlined is to be done in strict accordance 
with the specifications, the accompanying plans, and such instruc- 
tions as may be given from time to time by the Company's engineers. 



SPECIFICATIONS AND CONTRACTS. 11 

Bidders are hereby warned that they will be held strictly to the 
spirit of these specifications, and that it will be bad policy for 
any one to bid with the expectation that concessions will be made 
after the contract is closed, in order that the work may be cheapened; 
for while the Company's engineers desire to aid the Contractors 
in every legitimate manner to do their work expeditiously and 
economically, at the same time they have given these plans and 
specifications the most thorough consideration, and know exactly 
what they need in respect both to design and to quality of materials 
and workmanship. On this account, bidders are respectfully 
requested not to complicate their tenders by putting in alternative 
bids based upon proposed changes in either plans or specifications, 
because such alternative bids will not be considered." 

This clause, which is common to all of our specifications, was Alterations to be 

Avoided 
originated by me some ten years ago, in order to prevent bidders 

from trying to modify our plans and specifications by offering some 
of their own for the purpose either of cheapening the work or of 
giving the bidder an advantage over his competitors. Promoters of 
enterprises are too prone to listen to the specious arguments of 
bidders when they contend that they are better posted upon what is 
needed than are the engineers. Whenever the promoters permit 
themselves to be influenced by such arguments they are certain to 
come to grief. Contractors work for their own interests, and it is 
right that they should do so; but they ought not to claim that their 
advice is unprejudiced and is offered for the sole purpose of improv- 
ing the construction; when they do, they are not speaking the 
truth. For many years I have had to struggle constantly and vigor- Effect of Changes 
ously against such attempts of bidders and contractors to change 
my plans and specifications, and on more than one occasion I have 
had to take the stand that either the promoter must refuse to enter- 
tain the bidders' suggestions or that I must resign my position. In 
one of these instances there were involved some two million dollars' 
worth of work; and I came within an ace of losing the engineering 
on it by my absolute refusal to consider the fundamental changes 
in my plans and specifications that were proposed by the bidders. 
By adopting the preceding clause and by adhering strictly to its 
context, I have, after many years, succeeded in preventing any more 
such attempts to upset my work. Of course, in minor matters when 
a contractor offers politely any reasonable suggestion tending toward 
the modification of my requirements, I am always ready to consider 
it, and I never refuse to accede to such a request, if it be proved 



12 



SPECIFICATIONS AND CONTRACTS. 



Detail Drawings 



Drawings to be Vei-i- 
fied 



Contractor's Details. 



Engineer's Details 



Eesponsibility for 
Errors 



that tlie change is either beneficial or at least not detrimental to the 
construction.^ 

DRAWINGS. 

"As soon as practicable after the signing of the contract for 
rebuilding the structures, complete detail drawings will be furnished 
by the Engineer, and from these the Contractor is to prepare his 
working drawings, complying carefully therewith, and making no 
changes without the written consent of the Engineer. The working 
drawings are to be sent in triplicate for the approval of the 
Engineer, who will retain two sets and return the third after 
checking same and marking thereon any changes or corrections 
desired; after which a corrected set of working drawings shall be 
sent without delay by the Contractor to the Engineer. The approval 
of the said working drawings by the Engineer will not relieve the 
Contractor from the responsibility of any errors thereon. 

The drawings furnished by the Engineer shall be checked 
carefully by the Contractor before beginning work. Should any 
errors be discovered, the Engineer's attention shall be called to same, 
and corrections will be made, after which the Contractor shall be 
responsible for all errors which may occur or which may have 
occurred. The Engineer shall have the right to alter as he may see 
fit the preliminary plans, if further investigation of the conditions 
affecting the proposed structure so warrant; and he shall be at 
liberty to make minor changes in all plans during construction 
without any charge being made for same by the Contractor, unless, 
in the opinion of the Engineer, the Contractor be really entitled to 
extra compensation on account of such changes. 

The Contractor shall furnish without charge as many sets of 
working drawings as the Engineer and other officers of the Com- 
pany may deem necessary for their use during construction or for 
record. 

Should the Engineer prepare any working drawings, they shall 
be checked carefully by the Contractor; and, if any errors be discov- 
ered, the Engineer's attention shall be called thereto. After the 
proper corrections of these are made, the Contractor shall be 
responsible for all errors which may occur or which may have 
occurred."^ 

It may at first thought appear a little arbitrary to hold the 



1 Material changes often affect the rights and liabilities of the parties, 
and lead to complications, in case of litiscation. 

- This would doubtless apply only to errors in working drawings. 



SPECIFICATIONS AND CONTRACTS. 13 

Contractor responsible for any errors that there may be in the 
Engineer's plans, but a little consideration will show that, if there 
are any such errors, they ought to be discovered before work is 
started, and that, as the Contractor is to attend to the construction, 
he ought to make sure in advance that the entire scheme is correct 
in every particular; who is there, then, so suitable as he to do the 
checking and to correct the mistakes?^ 

It is not a good plan for the Engineer to prepare shop-drawings Shop-Drawings 
for metal-work, because no two shops have exactly the same method 
of making working drawings; those suitable for one manufacturing 
company would not be acceptable to another. It is therefore much 
better for the Engineer to draft complete detail plans, then submit 
them to the Contractor as a guide for the preparation of the shop- 
drawings. 

INSPECTION. 

"The inspection and tests of metal will be made promptly on its Inspection, Facilities 

for 
being rolled or cast, and the quality will be determined before it 

leaves the rolling-mill or foundry. The inspection of workmanship 

will be made as the manufacture of the material progresses, and at 

as early a period as the nature of the work will permit. 

All facilities for inspection of metal and workmanship shall be 
furnished by the Contractor; and the Engineer and his inspectors 
;shall have free access to all parts of the plant in which any portion 
of the metal is being made. 

The Contractor shall give the Inspector due notice when any Notice of, and Delay 
metal is ready for inspection. Any delay on the part of the 
Inspector shall be reported to the Engineer, but no material will be 
accepted which has not been passed upon by the authorized repre- 
sentative of the Engineer. 

All other materials than metal used on the work shall be Field Inspection 

inspected after delivery at site, unless the Contractor shall elect to 

have any materials inspected elsewhere, in which case the said 

materials shall be inspected by the Engineer at the places designated 

by the Contractor; but all expenses connected with such inspection 

shall be borne by the Contractor, and shall be paid promptly from 

time to time upon presentation of bills for same." 

The reason for stipulating that all materials excepting metal Expense of Inspec- 
tion 

shall be inspected at site, unless the Contractor elect to have the 
inspection done elsewhere at his own cost, is that without this 



^ This may be true in steelworli, but it will not hold in all classes of 
construction worli. 



14 



SPECIFICATIONS AND CONTRACTS. 



Final Inspection 



Defects to be Made 
Good 



Inspection and Ac- 
ceptance 



Foreman in Charge 



restriction there would be no end to the expense to which an. 
Engineer would be put in sending inspectors all over the country 
to stone quarries, cement manufactories, sand pits, lumber mills, and: 
forests. 

FINAL INSPECTION. 

"Before the completed work on each bridge is accepted and paid: 
for in full, the Contractor shall notify the Engineer in writing that, 
it is ready for final inspection. Upon receipt of this notification,, 
the Engineer will arrange to give the entire work on the said bridge- 
a minute and thorough inspection, either in person or through a. 
competent representative who has not been employed regularly on 
this special work. Any defects or omissions noted during this 
inspection must be made good by the Contractor, without extra, 
charge, before the work will be accepted and paid for in full." 

The reason for specifying that the final inspection shall not 
be made by the resident engineer is that no man can well check or 
inspect his own work, because he will be almost certain to overlook 
any errors or omissions that had previously escaped his notice. 

DEFECTIVE WORK. 

"The Contractor, upon being so directed by the Engineer, shall 
remove, rebuild, or make good, without charge, any work which 
the said Engineer may consider to be executed defectively. The fact 
that any defective material in the structure had been accepted pre- 
viously by the oversight of the Company's Engineers or Inspectors, 
shall not be considered a valid reason for the Contractor's refusing^ 
to remove it or to make it good. And until such defective work is. 
removed and made good, the Engineer shall deduct from the partial 
payments or the final payment, as the case may be, whatever sum 
for such defective work as may, in his opinion, appear just and 
equitable." 

Many contractors object strenuously to the clause which forces 
them to remove and replace any defective work, claiming that any- 
thing which is once passed is accepted finally, and that if it has to be 
rebuilt, the extra work involved should be paid for by the Company.. 
But if such an arrangement as this were to rule, it would act as an 
incentive for contractors to attempt to bribe the inspectors, and 
would leave the Company without recourse from the results of the 
latter's dishonesty. 

DIRECTIONS TO CONTRACTOR. 
"In case the Contractor shall not be present upon the work at 
any time when it may be necessary for the Engineer to give instruc- 



SPECIFICATIONS AND CONTRACTS. 15 

tions, the foreman in charge for the time being shall receive and 
obey any orders that the Engineer may give. 

The Contractor shall commence work at such points as the Progress 
Engineer may direct, and shall conform to his directions as to the 
order and time in which the different parts of the work shall be 
done, as well as to the force required to complete the work at the 
date specified. 

CLOSING THOROUGHFARES. 
The Contractor and his employees shall so conduct their opera- Thoroughfares 
tions as not to close any thoroughfare by land or water without the 
written consent of the proper authorities of such thoroughfare. 

RESPONSIBILITY FOR ACCIDENTS. 
The Contractor shall assume all responsibility for accidents to Accidents 
men, animals, materials, and trains before the acceptance of the 
.structure; and must remove at his own expense all false-work, 
rubbish, or other debris caused by his operations; and such 
work shall be included as a part of the work to be performed. 
'The Contractor shall place sufficient and proper guards for the 
prevention of accidents, and shall put up and maintain at night 
suitable and sufficient lights. 

DAMAGES. 
The Contractor shall indemnify and save harmless the Company indemnity 
against all claims and demands of all parties whatsoever for 
damages or compensation for injuries arising from any obstructions 
erected by the Contractor or his employees, or from any neglect or 
omission to provide proper lights and signals during the construc- 
tion of the work. 

ALTERATION OF PLANS. 

The Engineer shall have the power to vary, extend, increase, or Alterations and 

Compensation 
diminish the quantity of the work or to dispense with a portion 

thereof during its progress without impairing the contract, and no 

allowance will be made the Contractor except for the work actually 

done. In case any change involve the execution of work of a class 

not herein provided for, the Contractor shall perform the same, and 

shall be paid the actual cost thereof plus the percentage for profit 

agreed upon in the contract. In this case the Contractor must 

furnish the Engineer with satisfactory vouchers for all labor and 

material expended on the work. 



16 



SPECIFICATIONS AND CONTRACTS. 



Inspection 



Intent 



Progress Payments 



Liens Discharged 



STRICTNESS OF INSPECTION. 

All materials and workmanship will be inspected thoroughly 
and carefully, and the Contractor will be held at all times to the 
spirit of the specifications; but nothing will be done by the Com- 
pany's engineers or inspectors to give the Contractor needless worry 
or annoyance, the intent of both specifications and inspection being 
simply to obtain for the Company work that will be first-class in 
every particular and a credit to every one connected with its 
designing and construction." 

This clause contains in a nutshell the entire code of ethics 
which should govern the Engineer in his dealings with the Con- 
tractor. 

SPIRIT OF THE SPECIFICATIONS. 

"The nature and spirit of these specifications are to provide for 
the work herein enumerated to be fully completed in every detail for 
the purpose designed; and it is hereby understood that the Con- 
tractor, in accepting the contract, agrees to furnish any and every- 
thing necessary for such construction, notwithstanding any omission 
in the drawings or specifications." 

It may seem unfair to bind the Contractor to furnish things not 
called for in the specifications; but the clause is intended to cover 
only such things as are absolutely necessary for the work and which 
were evidently overlooked when the bidding papers were prepared. 

PAYMENTS. 
"Payments for work shall be made as follows:^ 
On or about the first day of the month the Engineer will estimate 
the value of the work done and materials furnished; and within 
twenty-five (25) days thereafter, eighty-fivg (85) per cent, of the 
value thus determined, less previous payments, shall be paid to the 
Contractor in cash. Upon the completion of each bridge involved in 
the contract, and upon acceptance of same in writing by the Com- 
pany, the balance due the Contractor for the said bridge shall be 
paid to the said Contractor in cash. 

Before, however, the final payment on any bridge is made, the 
Contractor shall show to the Company satisfactory evidence that all 
just liens, claims, and demands of his employees, or of parties from 
whom materials used in the construction of the work may have been 
purchased or procured, are fully satisfied; and that the materials 
furnished and work done on the structure are released fully from 
all such liens, claims, and demands. 



1 These clauses are more frequently made a part of the contract. 



SPECIFICATIONS AND CONTRACTS. 



17 



If, too, during the progress of the work, it appear that the Bills to be Paid 
Contractor's bills for labor and materials are not being paid, the 
Company shall have the right to withhold from the Contractor's 
monthly payments a sufficient sum or sums to guarantee itself 
against all losses from mechanics' and other possible liens, and to 
apply the said sum or sums to the payment of such debts. 

Or, if during construction it appear to the Engineer that the Abandonment 
Contractor is not making proper progress, the Company shall have 
the right, after giving the Contractor ten days' notice in writing, to 
undertake itself, either by administration or by letting a contract to 
other parties, the completion of the said work which is being thus 
neglected. Should the Company's work cost less than what the 
Contractor would have been paid, the difference shall be paid to the 
Contractor; but on the other hand, should it cost more, the difference 
shall be charged to the Contractor, and shall be taken out of the 
reserved fifteen (15) per cent, or out of the bond. 

Under these circumstances the Company shall have the right q^^™^^®*^^" ^^ 
to enter upon and take temporary possession of the plant, tools, 
materials, and supplies of the said Contractor or any part thereof. 
In case that the percentage of earnings withheld by the Company 
be insufficient to make good the deficit, the Company shall have the 
right to reimburse itself by the sale of the Contractor's plant; but 
otherwise the said plant shall be returned to the Contractor after the 
completion of the work." 

The number of days that may elapse between the time of Monthly Estimates 
preparing the monthly estimates and the date of payment varies 
generally from ten to thirty, according to the attendant conditions, 
it being necessary to allow time for the compilation of statistics, 
mailing of papers, distribution of estimates, and forwarding of 
checks. 

The amount retained from each estimate by the Company until Percentage Retained 
the completion of the entire contract is generally ten per cent, and 
never more than fifteen per cent. 

It is one of the most important duties of the Engineer to make 
sure that his clients are protected against mechanics' and other 
liens upon the work, and he will have to be ever on the alert to 
insure this when dealing with irresponsible or tricky contractors. 

The handling of work by administration is generally rather 
expensive for the Company and burdensome to the Engineer; hence 
it is to be avoided whenever possible. 



18 



SPECIFICATIONS AND CONTRACTS. 



Extras 



Surety- 



Contract 



-Return of Papers 



Example, a "Bridge 



EXTRAS.^ 

"No extras will be allowed or paid for unless they be ordered in 
writing by tbe Engineer. For extras so allowed the Contractor will 
be paid the actual cost to him plus ten (10) per cent, for profit. 
Satisfactory vouchers will be required from the Contractor for all 
extra labor and materials." 

The question of extras is always likely to be a bone of conten- 
tion between the Contractor and the Engineer; consequently the 
more fully it is covered in the specifications the better for both 
parties. 

BOND. 

"The successful bidder will be required to give the Company a 

satisfactory Surety Company Bond, in the sum of dollars, 

for the faithful performance of the contract and specifications and 
all the terms and conditions therein contained, and for the prompt 
payment for all material and labor used in the manufacture and 
construction of the structures, and to protect and save harmless the 
Company from all damages to persons or property, caused by the 
negligence or claim of negligence by the Contractor, his agents, 
servants, or employees in doing the work, or in connection therewith. 
Each bidder must state in his tender the name of the Surety 
Company that he offers for furnishing this bond. 

CONTRACT. 

As soon as possible after the award of the contract is made, a 
contract similar to that outlined on the accompanying form will be 
presented in duplicate to the successful bidder for his signature, 
after which both copies will be signed by the Company, and one of 
them will be given to the said successful bidder. 

RETURN OF PAPERS. 

All papers submitted to bidders, excepting only those of the 
successful bidder, are to be returned to the Consulting Engineers 
upon demand." 

The reason why the unsuccessful bidders are required to return 
the papers submitted to them for tendering is that several copies 
of the plans and specifications will be required later for those 
prosecuting the work, and this return of papers will effect an 
economy in copying. 

Before leaving the subject of general clauses, I shall quote a 
few found in the contract (of which the specifications form a part). 



1 This is more often made a part of the contract. 



SPECIFICATIONS AND CONTRACTS. 19 

The division of the entire list of general clauses between the specifi- 
cations and the contract is purely arbitrary. My firm has a certain 
form of contract of its own, which will apply to any and all of our 
specifications by simply filling in the blank spaces. It is from this 
form that I am about to quote certain paragraphs in order to com- 
plete my list of general clauses that will apply to all engineering 
specifications. 

CARE OF DELIVERED MATERIAL. 

"All material paid for by the party of the first part shall be Ownership of Ma- 
terials 
deemed to have been delivered to, and to have become the property 

of the said first party, but the party of the second part hereby 

agrees to store it and to become responsible therefor during the 

•continuance of this agreement." 

The object of this clause is to make the Contractor responsible 

for the care and insurance of all materials delivered and partially 

paid for. Without some such provision the Company would have to 

stand all losses from flood, fire, and theft before the completion and 

acceptance of the structure. 

EXTENSION OF TIME. 

"In case the party of the first part, notwithstanding the failure Time Limit not 

Waived 
■of the party of the second part to complete its work within the time 

specified, shall permit the said second party to proceed and continue 
and complete the same as if such time had not lapsed, such permis- 
sion shall not be deemed a waiver in any respect, by the first party, 
of any forfeiture or liability for damages or expense thereby 
Incurred, arising from such non-completion of said work within the 
time specified, and covered by the "Liquidated Damages" clause of 
the specifications; but such liability shall continue in full force 
against the said second party, as if such permission had not been 
granted." 

Without some such clause as this the Contractor when allowed 
to exceed his contract time might claim immunity from liquidated 
damages, and thus render that clause of the specifications null and 
void. 

CHANGE OF PLAN OR OF CONTRACT. 

"No change or alteration shall be made in the terms or conditions Written Order for 
of this agreement without the consent of both parties hereto in 
writing; and no claim shall be made or considered for any extra 
work, unless the same shall be authorized and directed in writing 
by the Engineer, as herein provided. 



20 



SPECIFICATIONS AND CONTRACTS. 



No Damages 
Delay 



for 



Assignment For- 
bidden 



Engineer's Decision 



Arbitration 



EXTRA COMPENSATION. 
In the event of any delay in completing the work embraced in 
this contract, the party of the second part shall be entitled to no 
extra compensation on account of such delay; as it is hereby 
assumed that in submitting its tender it took its chances for the 
occurrence of such delay." 

This is an unusual clause in engineering contracts, having been 
originated by me some years ago. The usual objection to it is that 
it is entirely one-sided, which cannot be denied. It is certainly 
likely to be of great advantage to the Company, as the latter is often 
tied up by litigation and sometimes from want of sufficient funds 
to prosecute the construction continuously or as rapidly as desired. 
Of course, the Engineer in applying this clause must use his judg- 
ment and sense of equity to make sure that it does not involve any 
real hardship for the Contractor. Its main object is to prevent the 
latter from claiming exemption from all liquidated damages or 
from demanding extra compensation on account of trifling delays 
caused either by the Company or by circumstances beyond the 
Company's control. 

SUBCONTRACTING. 
"The party of the second part hereby agrees that it will not 
assign or sublet the work covered in this contract, or any portion of 
it, without the written consent of the party of the first part, but will 
keep the same within its control. 

ARBITRATION OP DISPUTES. 

The decision of the Engineer shall control as to the interpreta- 
tion of drawings and specifications during the execution of the work 
thereunder; but if either party shall consider itself aggrieved by 
any decision, it may require the dispute to be finally and conclusively 
settled by the decision of three arbitrators, the first to be appointed 
by the party of the first part, the second by the party of the second 
part, and the third by the two arbitrators thus chosen. By the 
decision of these three arbitrators, or by that of a majority of them, 
both parties to this agreement shall be finally bound." 

It is seldom that this arbitration clause is resorted to, for the 
Engineer's decisions are almost invariably just and reasonable. 
Only once in nay entire career has it been put in force on my work, 
and, as in this instance there was too good an understanding between 
the promoter of the enterprise and the dealer who furnished the 
rejected materials, I lost the case. 



SPECIFICATIONS AND CONTRACTS. 21 

NOTIFICATION OF IMPENDING SUITS. 

"As, according to the terms of the accompanying specifications, Indemnity 
which form a part of this contract, the party of the second part is 
to indemnify the party of the first part against all liability or 
damages on account of accidents occasioned by the omission or 
negligence of itself, or its agents, or its workmen during the con- 
tinuance of this agreement, and is to pay all judgments recovered 
by reason of such accidents in any suit or suits against the party 
of the first part, including legal costs, court and other expenses; it Litigation 
is hereby agreed that the party of the second part shall be promptly 
and duly notified in writing by the party of the first part of the 
bringing of any such suit or suits, and shall be given the option 
of assuming the sole defense thereof." 

This provision is entirely in the Contractor's favor, but the point 
involved is one of simple equity; for if he is to pay all 
damages he certainly ought to be allowed to handle the legal fight in 
his own way. 

And now I shall quote some specific clauses merely to illustrate Specific Clauses 
their general style and character; for it is obvious that it would be 
impracticable in a lecture like this to attempt to cover all the 
specific clauses for even one class of construction — much less for all 
classes. 

The following clauses are taken from the same set of specifica- 
tions as before: 

SCOPE OF CONTRACT. 

"The contract will cover the following: Removal of Old 

1st. Removal of old spans, marking properly all the pieces of 
same, and piling these near the site as per the instructions of the 
Engineer. 

2d. Removal of old piers and portions of old piers, and dis- 
tributing the removed masonry as rip-rap around the piers of the 
same bridges from which the said masonry was taken, all in accord- 
ance with the instructions of the Engineer. 

3d. The furnishing of all materials (excepting old rails) for Old Materials 
and the rebuilding of the tops of old piers that are to be repaired. 

4th. The furnishing of all materials (excepting old rails) for 
and the building of all new piers and abutments. 

5th. The furnishing of all the materials (excepting track rails New Materials 
and their fastenings) for and the building complete of all the new 
spans required, including the timber fioor. 



Rights of Way 



Statement of Quan- 
tities 



Temporary Works 



22 SPECIFICATIONS AND CONTRACTS. 

6th. Providing all materials for and building all falsework to 
carry the old fixed spans which are to he left in, while the support- 
ing piers are being repaired, and removing the said falsework as 
soon as the Engineer gives directions for such removal. 

7th. Laying of tracks on all new spans and connecting same 
properly to the approaches." 

Let me call your attention to the clearness and conciseness with 
which the various items in this clause are stated, and caution you 
when preparing specifications of your own to be just as clear in 
everything relating to "Scope of Contract," for this is one of the 
most important clauses of any set of specifications. 

HAULING OVER COMPANY'S LINES. 
"There will be no charge for hauling over the Company's lines 
any of the Contractor's men, materials, or plant." 

APPROXIMATE QUANTITIES OF MATERIALS, ETC. 
"The following are the approximate quantities of materials, etc., 

in the ten (10) structures. They will be used in comparing tenders 

for awarding of contract, but are not to be considered in any way 

binding upon the Company or upon its Engineers: 

Structural steel in new pin-span, erected 
and painted 1,313,000 lbs. 

Structural steel in new plate girder spans, 
erected and painted 6,586,000 lbs. 

Timber in railway floors 400 M. feet, B. M. 

Length of single track to be laid 4,300 lineal feet. 

Old spans to be removed 3,311 lineal feet. 

Old masonry to be removed 1,612 cubic yards. 

Mass in caisson and crib of pneumatic pier. . 1,360 cubic yards. 

Mass in cribs or bases of all other piers... 2,800 cubic yards. 

Concrete in bases of all abutments (no 
allowance being made for cost of excava- 
tion, coffer-dams, pumping, bailing, etc.) . 2,100 cubic yards. 

Concrete in shafts of piers and abutments. . 13,200 cubic yards. 

Piles in place, below bottoms of cribs 16,200 lineal feet. 

Length of old spans to be supported on 

falsework 473 lineal feet. 

There will be no allowance for excavation or for back filling, as 

the cost of these items must be covered by the schedule prices for 

mass of foundations and piles in place. 

Neither will there be any allowance made for cost of removing 



SPECIFICATIONS AND CONTRACTS. 23 

old wooden trestle, as the Contractor will utilize the same for false- 
work to support the new girders. 

Neither will there be any allowance made for the placing as 
rip-rap around the piers the masonry stones removed from the 
existing piers, as this must be covered by the schedule price for the 
removal of masonry." 

Although the quantities given under this heading are generally Quantities, Approxi- 
mate 
approximate, it is very important, nevertheless, that they be filled 

out; because, in the first place, they give bidders a proper concep- 
tion of the magnitude of the work, and, in the second place, they 
afford a means of comparing bids on a basis that is perfectly fair 
to all competitors. 

INTERFERENCE WITH TRAFFIC. 
"The Contractor must so conduct all of his operations as not to Traffic interference 
Interfere at all with the passage of the Company's trains; and he 
must take every precaution against accidents to the said trains 
caused by his operations. Should any accidents occur by reason of 
such operations, either directly or indirectly, the Contractor will be 
held responsible both pecuniarily and morally for the results of such 
accidents." 

The importance of this clause to the railroad company cannot 
be overestimated. Wherever bridges are to be constructed on lines 
in operation, this clause should under no circumstances whatsoever 
be omitted, 

REMOVAL OF OLD PIERS. 

"In taking down existing piers which are not to be rebuilt. Blasting 
small charges of explosives may, with the consent of the Engineer, 
be used; but none may be employed for removing the tops of piers 
that are to be rebuilt. In the latter the greatest of care must be 
taken not to injure any of the masonry that is to be preserved. 

All masonry that is removed from the old piers and abutments 
must be disposed of as rip-rap for piers, or otherwise as directed 
by the Engineer. 

METAL. 

Unless otherwise specified, all metal shall be medium steel, Steel and iron 
excepting only that rivets and bolts are to be of soft steel and adjust- 
able members of either soft steel or wrought iron. 

Except for the washers for floor bolts, cast iron will not be 
allowed to be used in the superstructure, cast steel being employed 
wherever important castings are necessary. 



24 



SPECIFICATIONS AND CONTRACTS. 



Holled Steel 



Testing 



itetestlng 



Materials. Re- 
wrouglit 



ROLLED STEEL. 

All steel shall be manufactured by either the acid or the basic 
open-hearth process, and must be uniform in character for each 
specified kind. Any attempt to substitute Bessemer or any other 
steel for the open-hearth product will be considered a violation of the 
contract and a good and sufficient reason for cancelling the same. 

All plates shall be rolled from slabs. These slabs shall be made 
by a separate operation, by rolling an ingot and cutting off the scrap. 
The original ingot shall have at least twice the cross-sectional area 
of the slab, and the latter shall be at least six (6) times as thick as 
the plate. 

All finished material coming from the mills must be free from 
seams, flaws, or cracks; and must have a clean, smooth finish. 

GENERAL PROVISIONS ON METHODS OP TESTING. 

Rivet rods and other rounds are to be tested in the form in 
which they leave the rolls, without machining. 

Test pieces from angles, plates, shapes, etc., shall be rectangular 
in shape, with a cross-sectional area of preferably about one-half 
(%) of a square inch, but not less, and shall be taken so that only 
two sides are machine finished, the other two having the surface 
which was left by the rolls. 

Should fracture occur outside of the middle third of the gauge 
length, the test is to be discarded as worthless, if it falls below the 
standard. 

If any test piece have a manifest flaw, its test shall not be con- 
sidered. 

In case that one piece fall slightly belov/ the requirements in 
any particular, the Inspector may allow the retesting of the lot or 
heat by taking four (4) additional tests from the said lot or heat; 
and if the average of the five shall show that the steel is within the 
requirements, the metal may be accepted; otherwise it shall be 
rejected. 

Drillings for chemical analysis may be taken either from the 
preliminary test piece or from the finished material. 

The speed of the machine for breaking test pieces shall not be 
less than one-quarter (%) inch per minute nor more than three (3) 
inches per minute. 

Material which is to be used without annealing or further treat- 
ment is to be tested in the condition in which it comes from the 
rolls. When the material is to be annealed or otherwise treated 



SPECIFICATIONS AND CONTRACTS. 25 

before being used, the specimens representing such material may be 
similarly treated before testing; but they shall also give standard 
•elongation, reduction, and fracture before annealing. 

BENDING TESTS. 
"Speciments of soft steel shall be capable of bending to one Bending Tests 
hundred and eighty (180) degrees and closing down flat upon them- 
selves, without cracking, when either hot, cold, or quenched. 

. Specimens of medium steel when heated to a dark orange and 
cooled in water at seventy (70) degrees Fahrenheit, or when cold or 
hot, shall be capable of bending one hundred and eighty (180) 
degrees around a circle whose diameter is equal to the thickness 
of the test-piece, without showing signs of cracking on the convex 
side of the bend. 

DRIFTING TESTS. 
Punched rivet holes in medium steel, pitched two (2) diameters Drifting Tests 
from a sheared edge, must stand drifting until their diameters are 
fifty (50) per cent, greater than those of the original holes, and 
must show no signs of cracking the metal. 

FRACTURE. 

All broken test pieces for both classes of steel must show a silky 
fracture of uniform color. 

WORKMANSHIP. 

All metal shall be straightened carefully before being turned Worlsmansbip 
over to the shops. 

All workmanship shall be first-class in every particular, and all. 
portions of metal-work exposed to view shall be neatly finished. 

All idle corners of plates and angles, such, for instance, as 
the ends of unconnected legs of angle lacing, shall be neatly cham- 
fered off at an angle of about forty-five (45) degrees, so as to give 
a sightly finish to the work and to avoid bending of said corners 
during shipment and erection. 

As far as practicable, all parts shall be so constructed as to be 
accessible for inspection and painting. 

All punched work shall be so accurately done that, after the Punching 
various component pieces are assembled and before the reaming is 
commenced, forty (40) per cent, of the holes can be entered easily 
by a rod of a diameter of one-sixteenth (1-16) of an inch less than 
that of the punched hole; eighty (80) per cent, by a rod of a diameter 
of one-eighth (%) of an inch less than same; and one hundred (100) 



26 



SPECIFICATIONS AND CONTRACTS. 



per cent, by a rod of a diameter one-quarter .(i/4) of an inch less 
than same. Any shopwork not coming up to this requirement will 
be subject to rejection by the Inspector." 

These requirements for accuracy in punching were formulated 
some six years ago by Mr. Frank C. Osborn, C. E., of the Osborn 
Engineering Co., and by me working jointly. They are by no means 
too severe, and yet are rigid enough to insure truly first-class shop- 
work. It is only the good shops, though, that can comply with such 
requirements. 

FIELD RIVETING. 
Field Riveting "All field riveting shall be done by pneumatic riveters of a type' 

to be approved by the Engineer, except in places where it is imprac- 
ticable to use the apparatus, in which case hand riveting will be 
permitted." 

The quality of pneumatic riveting is far superior to that of 
hand riveting and but little inferior to that of the machine riveting 
done in the shops. The use of the pneumatic riveters for field 
work has permitted the adoption of much longer riveted spans than 
were built when all field riveting was done by hand. Not only are 
the rivets driven by the pneumatic machine much tighter, but more 
than twice as many can be driven- per day with the same force of 
men as compared with hand-driven rivets. 



Punching and 
Reaming 



PUNCHING AND REAMING. 

"All rivet-holes in steelwork, if punched, shall be made with a 
punch one-eighth (%) inch in diameter less than the diameter of 
the rivet intended to be used, and shall be reamed to a diameter 
one-sixteenth (1-16) inch greater than that of the said rivet. 

Before this reaming takes place, all the pieces to be riveted 
together shall be assembled and bolted into position, then the 
reaming shall be done; for one of the principal objects of this clause 
in relation to sub-punching is to insure the correct matching of 
rivet-holes and the avoidance of holes of excessive diameter. The 
said clause also insures the removal of most, if not all, incipient 
cracks started by the process of punching. 

All reaming is to be done by means of rigid twist-drills, the use 
of tapered reamers being prohibited, except where rigid twist- 
reamers cannot be employed. All holes must be at right angles to 
surface of member, and all sharp or raised edges of holes under 
heads must be slightly rounded off before the rivets are driven 

All holes for field rivets, excepting those for lateral or sway 



SPECIFICATIONS AND CONTRACTS. 27 

bracing, when not drilled to an Iron template, shall be reamed while 
the connecting parts are temporarily assembled. 

Punching shall not be permitted in any piece in which the 
thickness of the metal exceeds the diameter of the cold rivet that is 
to be used; but all such pieces shall be drilled solid." 

For the last ten years I have been fighting hard to have all 
important metal sub-punched and reamed, and have succeeded as 
far as my own work is concerned; for the Contractors have at last 
ceased telling our clients how much money could be saved on the 
work by omitting the sub-punching and reaming. If any one has 
any doubts about the necessity for this treatment of the metal, he 
can set them finally at rest in one of two ways— by reading my 
resume of the discussions on my paper upon "Elevated Railroads," 
published in the "Transactions of the American Society of Civil 
Engineers," or by inspecting in the shops before the reaming is 
done a lot of assembled metal, running his finger into a number of 
the holes, and noting the great irregularities that the rivets will 
have to fill, if the holes be punched full size. 

SHIPPING. 
"All parts shall be loaded carefully so as to avoid injury in Transportation 
transportation and shall be at the Contractor's risk until erected 
and accepted. 

In shipping long plate-girders, great care is to be taken to 
distribute the weight properly over the two cars that support them 
and to provide means for permitting the cars to pass around curves 
without disturbing the loading. In both the handling and the ship- 
ment of metalwork every care is to be taken to avoid bending or 
straining the pieces or damaging the paint. All pieces bent or 
otherwise injured will be rejected." 

The preceding clauses have all related to the superstructure of 
bridges; those immediately following will relate to the substructure. 

POSITION OF PIERS, PEDESTALS, AND ABUTMENTS. 

"All piers, pedestals, and abutments, when finished, must be in Lines and Levels 
exact position and to exact elevation; and all anchor-bolts therein 
must be located with the greatest exactness in respect to both 
horizontal position and elevation. 

The Contractor must provide all guide-piles, anchors, cables, 
frames, and forms that may be required to insure the result." 

The placing in exact position of all piers is one of the most 
difficult feats that the substructure contractor has to accomplish; 



28 



SPECIFICATIONS AND CONTRACTS. 



Foundation Depths 



Borings 



Unforeseen Obstruc- 
tions 



^Eisks 



consequently it is evident that this requirement is an absolute 
necessity. 

DEPTHS OF FOUNDATIONS. 

"All cribs, footings, and caissons are to be sunk to the depths 
shown on the Engineer's plans or to such other depths as the 
Engineer may deem necessary as the work progresses. 

The data furnished to bidders by the Engineer regarding depths 
of foundations or of bed rock are to be considered as merely approxi- 
mate; and bidders must assume the risk of having to go a greater 
or less depth without altering in any way their schedule prices. 
If, however, the Engineer consider that the Contractor is really 
entitled to extra compensation on account of material variation 
from the data furnished, such extra compensation will be allowed, 
but the amount thereof shall be determined solely by the Engineer. 

If, too, during the progress of the work, the Engineer deem that 
further investigations concerning the elevations of bed rock or 
quality of materials for foundations are necessary, the Contractor 
shall make at his own expense, under the direction of the Engineer, 
all the borings or similar investigations which the latter may con- 
sider to be requisite.^ 

ENCOUNTERING OBSTACLES. 

Bidders must figure on taking their chances of encountering 
logs, boulders, and other obstacles under the river bed at the pier 
sites; and the Contractor must provide himself with all the neces- 
sary tackle and apparatus for handling the same. There will be 
no extra price allowed because of the difficulty in sinking, or in 
driving through, or in removing said obstacles." 

Some contractors complain that this clause is too severe, in that 
it places upon them the entire responsibility and risk involved in 
case of meeting with unexpected obstacles; nevertheless, it is both 
fair and necessary. If the Contractor were paid extra on account 
-of obstacles, there would be no end to his claims for increased com- 
pensation, and the amounts of these claims might be excessive, 
because he would probably fail to make at the outset proper pro- 
vision for removing all obstructions, while, if the onus were on him, 
he would undoubtedly provide everything necessary." 



1 Tlie obligations of the Contractor should be definite in amount and 
character. 

2 This depends upon who is to bear the risks of the undertaking ; the 
Owner or the Contractor. Contractors are not generally in the insurance busi- 
ness, and their investigation is not usually as extended as is that by the 
Owner and its or his Engineers. The Engineer is best qualified to make a 
contract of indemnity or of insurance. 



SPECIFICATIONS AND CONTRACTS. 29 

PILE FOUNDATIONS. 
"Where piers and abutments are to rest on piles, the earth is to riling 
be excavated to the depth required, the boxing timber is to be put in, 
if any be called for on the plans or by the Engineer, then the piles 
are to be driven to the satisfaction of the Engineer, and cut off at 
the proper elevation, then the earth that has risen between the piles 
is to be removed, and the bed is to be rammed, if the Engineer so 
direct. The length and penetration of all piles are to be determined 
by the Engineer/ 

If it be practicable to pump out the water in the pit and keep Tumping 
the latter clear of same without injury to the unset concrete, this 
is to be done while the concrete is being tamped around the piles 
to within two (2) feet of the tops thereof, and until the concrete 
has set; otherwise, concrete of the same kind as hereinafter specified 
for the tops of concrete piers is to be placed between and around the 
piles by means of a tremie, being carried up to the height just 
specified; and after the same has set the water is to be pumped 
out, and the remainder of the footing is to be built of ordinary 
concrete laid in the dry. 

CONCRETE PIERS AND ABUTMENTS. 
All piers and abutments are to be built of broken stone concrete; Concrete 
but the Contractor will be permitted to mix therewith a portion of 
clean gravel in order to reduce the percentage of voids in the broken 
stone. 

The proportions for concrete without gravel for all interiors 
and footings of piers and abutments shall be as follows: 

1 part of Portland cement. 

3 parts of clean, coarse, sharp sand. 

5 parts of broken stone to pass a two and one-half (2i^) inch 
iron ring. 

Where gravel is mixed with the stone, the proportions for the 
said concrete are to be as follows: 

3 parts of sand as above. 

5 parts of mixed broken stone and gravel, with enough cement 
to more than fill all voids in the mixture by ten (10) per cent., and in 
no case less than one barrel (380 lbs. net) of cement per cubic yard 
of concrete. The determination of the volume of voids shall be left 
to the Engineer. 



1 Amount and character of work should be specified If possible. 



30 



SPECIFICATIONS AND CONTRACTS. 



Forms 



Tamping 



Clean Surfaces 



Cement 



For exterior concrete work and for all concrete to be deposited, 
before setting, in water, the proportions are to be as follows: 

1 part of Portland cement. 

2 parts of sand. 

3 parts of fine broken stone, to pass through a three-quarter ( % > 
inch iron ring. 

The exterior six (G) inches of all faces of piers and abutments 
that are exposed to the atmosphere or to water, are to be built of 
the rich small-stone concrete just described; and this is to be mixed 
and placed simultaneously with the other concrete, so that there 
shall be no division whatever, but a perfect bond between the two 
classes of concrete. 

Suitable forms of timber properly lined with oiled sheet iron 
must be provided to give the constructions the exact dimensions and 
the finish shown on the drawings. Care must be taken to make all 
forms strong enough to resist the ramming of the concrete without 
bulging out or in any way changing their position. 

No forms are to be removed until after the concrete deposited 
therein has stood thirty-six (36) hours, or as much longer as the 
Engineer may deem necessary. 

The exterior concrete is to be tamped solidly against the sheet- 
iron forms, so that there will be no voids on the exterior surface, 
which is to be left permanently as it comes from the moulds, unless 
the Engineer deem that the surface is too rough, in which case the 
Contractor must put on a smooth, two-to-one mortar finish to the 
satisfaction and acceptance of the Engineer. 

All interior and footing concrete is to be deposited in layers not 
exceeding nine (9) inches in thickness, and each layer is to be 
thoroughly rammed. 

DRY SURFACES IN CONCRETE. 

Should, during construction, any surfaces of the concrete be 
allowed to harden or dry before other concrete is placed thereon, 
they shall be swept perfectly clean with brooms, then wetted 
thoroughly with clean water, so as to make a perfect contact between, 
the old and the new work, a,nd thus insure that the concrete shall 
be truly monolithic. The forming of such dry surfaces shall, how- 
ever, always be prevented, if practicable. 

CEMENT. 
All cement used on the work must be Portland cement of the 
very best quality obtainable, equal in every respect to the best 



SPECIFICATIONS AND CONTRACTS. 31 

brands of American and European manufacture, and delivered at 
site in strong, close barrels, well lined with paper so as to be reason- 
ably secure from air and moisture, unless the Engineer give the 
Contractor written permission to deliver it in bags. 

Each barrel shall be labeled with the name of the brand, place 
made, and name of manufacturer. 

The cement shall be ground so fine that at least ninety-seven Fineness 
(97) per cent, in weight will pass a standard sieve of five thousand 
(5,000) meshes to the square inch, and so that at least ninety (90) 
per cent, will pass a standard sieve of ten thousand (10,000) meshes 
per square inch. 

When moulded neat into briquettes and exposed three (3) hours, cement Tests 
or until set, in air and the remainder of twenty-four (24) hours in 
water, it shall develop a tensile strength of from one hundred (100) 
to two hundred and fifty (250) pounds per square inch. When 
moulded neat into briquettes, after exposure of one (1) day in air 
and six (6) days In water, it shall develop a tensile strength of from 
two hundred and fifty (250) to five hundred (500) pounds per square 
inch; and after exposure of one (1) day in air and twenty-seven (27) 
days in water, it shall develop a tensile strength of from four 
hundred (400) to six hundred (GOO) pounds per square inch. It 
shall be an eminently slow setting cement, must develop its strength 
gradually, and must show no drop therein. When moulded neat 
into pats with thin edges and left to set in either air or water, 
whether on glass or not, the said edges must show no signs of 
checking. The cement shall withstand properly the standard twenty- 
four (24) hour boiling test for Portland cement. 

The cement, when mixed neat with twenty-two (22) per cent, of 
water to form a stiff paste, shall, after thirty (30) minutes, be 
indented perceptibly by the end of a wire one-twelfth (1-12) inch 
in diameter, loaded to weigh one-quarter (^) pound. 

The hard set, determined similarly with a wire one twenty- 
fourth (1-24) inch in diameter and loaded so as to weigh one 
pound, shall not occur in less than three (3) hours. 

Briquettes mixed in the proportion, by weight, of one part of Briquettes 
cement to three (3) parts of sand, and kept one day in air and the 
remaining time in water, shall show a tensile strength of from 
one hundred (100) to one hundred and fifty (150) pounds per square 
inch after twenty-eight (28) days. 

Briquettes left in moulds and placed in water immediately after 
mixing must harden to the satisfaction of the Engineer, so as to 



32 



SPECIFICATIONS AND CONTRACTS. 



Cement Storage 



Back-filling 



prove the fitness of the cement for setting under water. This test 
may be made a comparative one by pitting the cement tested against 
brands of established reputation. Any cement not hardening under 
water to the satisfaction of the Engineer will be rejected. Cement 
must work well under the trowel; otherwise it will not be accepted. 

In any case, the cement adopted must first be approved by the 
Engineer. 

The Contractor shall provide a suitable building for storing the 
cement, in which the same must be placed before being tested. The 
Engineer shall be notified of the receipt of cement for testing at least 
two (2) weeks before it is required for use, and the Inspector may 
take a sample from each package for the said testing. 

Any cement that has caked so as, in the opinion of the Engineer^ 
to be injured shall be rejected, and shall be removed immediately 
by the Contractor from the neighborhood of the site, in order to 
avoid all possibility of its being used on the work. 

BACK-FILLING. 
As soon as the masonry cr concrete work thereon is completed, 
the space around each shore pier and abutment shall be filled with 
earth, preferably clay, thoroughly dampened, and well rammed in 
layers not exceeding six (6) inches in thickness. There will be no 
direct payment for this back-filling, as the cost is to be covered by 
the price for concrete. 

LIQUIDATED DAMAGES. 
Liquidated Damages . por each day of delay beyond the date set in the contract for 
completing the Big Brazos River and Brushy Creek No. 1 bridges, all 
in accordance with the plans, specifications, and directions of the 
Engineer, the Company shall withhold permanently from the 
Contractor's total compensation the sum of one hundred dollars 
($100.00). 

For each day of delay beyond the date set in the contract for 
completing the remaining eight (8) bridges, all in accordance with 
the plans, specifications, and directions of the Engineer, the Com- 
pany shall withhold permanently from the Contractor's total com- 
pensation the sum of one hundred dollars ($100.00). 

The amounts thus withheld shall not be considered as a penalty, 
but as liquidated damages fixed and agreed to by the contracting 
parties." 

Let me call your attention to the term "Liquidated Damages," 
which is now employed instead of the older term "Penalty." If the 



Penalties 



SPECIFICATIONS AND CONTRACTS. 33 

latter were used it would be illegal, as the courts hold that no 
individual or corporation has the right to enforce a penalty, such 
enforcement being within the jurisdiction of the law only, but 
liquidated damages fixed beforehand can be collected. 

TENDERS. 

"Each bidder shall tender as follows: Proposals 

1st. For removal of old spans, marking all the pieces of same, 

and piling these as per instructions of the Engineer, 

dollars per lineal foot of span removed. 

2d. For removal of old masonry and distributing same, 
dollars per cubic yard. 

3d. For concrete in shafts of new piers and rebuilt portions of 
Did piers, dollars per cubic yard. 

4th. For mass in place of pneumatic pier, including excava- 
tion, dollars per cubic yard. 

5th. For mass in place of foundations fot all piers and abut- 
ments, including those portions of piles imbedded in the concrete, 
and including the excavation, dollars per cubic yard. 

6th. For those portions of piles in place below the concrete of 
the foundations, cents per lineal foot of pile. 

7th. For all structural metal in superstructure of pin-connected 
span, erected and painted, cents per pound. 

8th. For all structural metal in all other spans, erected and 
painted, cents per pound. 

9th. For floor timber in place, excluding dressing and all other 
wasted timber, dollars per M. feet, B. M. 

10th. For laying rails, cents per lineal foot of 

track. 

11th. For falsework under the existing spans that are to be left 

in the reconstructed bridges, dollars per lineal foot 

of span. 

For all other items not covered in this list the Contractor is to 
be paid the actual cost to him thereof plus ten (10) per cent, for 
his profit. He must, however, in such cases furnish vouchers satis- 
factory to the Engineer for all materials and labor involved in such 
extra work or construction. 

Tenders are to be sent in sealed envelopes to the undersigned renders 
Consulting Engineers, New Nelson Building, Kansas City, Mo. They 
will be received up to noon of Thursday, July 17, 1902. 

The Company reserves the right to reject any or all bids." 



34 



SPECIFICATIONS AND CONTRACTS. 



Unit Prices 



Example, Lighthouse 



General Location 



Investigation 



Description 



It will be noticed that all items of work are to be paid for at 
schedule rates, and that lump-sum payments are avoided. This is 
by far the better and more equitable method of compensation- 
because, if the final quantities vary from those bid upon, no harm 
will be involved, the Contractor being paid only for what he actually 
does. If the lump-sum basis of payment be employed, the Contractor 
will be constantly tempted to cut down the quantities of materials 
furnished, but when these are paid for by schedule prices no such 
temptation can exist.^ 

The following are a few specific clauses from our "Specifications 
for Lighthouses at Jutias Cay and Punta Gobernadora, on Colorados 
Reef, Island of Cuba." I have chosen only such items as are charac- 
teristic of lighthouse construction. 

GENERAL DESCRIPTION. 

LIGHTHOUSE AT JUTIAS CAY. 

"This Lighthouse will be located on the Northeast extremity of 
Jutias Cay, at a distance of about eighty-seven (87) meters from the 
water's edge. The location is well protected from the action 6f the 
waves by a reef in front and by the growth of mangroves. The 
height of the ground at the site is about nine-tenths (0.9) of a meter 
above the sea-level. 

The soundings made at the site show that the ground is com- 
posed of fine sand for a depth of from four (4) to five (5) meters 
then of sand, shells, and coral rock for a depth of about eight-tenths 
(0.8) of a meter, and this is underlaid with sand and shells, in which 
are imbedded pieces of coral rock that become more abundant as 
the depth increases. It is intended that the screw-piles shall rest 
on this layer. These piles are of steel shafting fitted with cast-iron 
screw points as shown on the drawings. 

The light for this structure will be a fixed one. The tower will 
be constructed of eight (8) steel columns arranged in the form of an 
octagonal pyramid, the long diameter of which will be fifty-six (56) 
feet at the base and fifteen (15) feet at the top. These columns are 
to be thoroughly braced in all directions with steel struts and 
diagonal rods as shown on the drawings. 

There will be a house located at the base of the tower, and a 
watch-room loca ted in the top of same. There will also be a stairway 

1 Limitations and restrictions imposed by municipal charters, legislatures 
and constitutions must be considered, which frequently require that the total 
expenditure authorized by the contract shall be determined and shall not 
exceed a fixed sum or the appropriation. 



SPECIFICATIONS AND CONTRACTS. 35 

extending from the base to the watch-room floor enclosed by a mantel. 
These enclosures are to be constructed of steel plates, and the interior 
walls are to be plastered on expanded metal lath. 

LIGHTHOUSE AT PUNTA GOBEBNADORA. 

This structure will be placed on the mainland at a point known Substructure 
as Punta Gobernadora, about six (6) miles west of Bahia Honda. 
The distance from this tower to the edge of the water will be about 
one hundred and fifty (150) meters. The site is protected from the 
action of the waves by reefs on the outside. The formation here 
is an extensive bed of limestone-coral rock, and the surface is 
practically level. 

The light for this structure will be movable. 
In all other respects the superstructure will be the same as 
described previously for the lighthouse at Jutias Cay. 

FOUNDATIONS 

FOR LIGHTHOUSE AT JUTIAS CAY. 

The foundation for this structure will consist of nine (9) screw Foundation 
piles, as shown on Sheet No. 2, eight (8) of which are placed in the 
form of an octagon around the axis of the ninth (9th) or central 
pile. The long diameter of the octagonal base is to be fifty-six (56) 
feet, and each of the sides twenty-one (21) feet and five and one- 
eighth (5%) inches. 

These piles are to be formed of solid steel shafts eight (8) inches 
in diameter, at the lower end of each of which is to be fitted a cast- 
iron screw, the blades thereof to be four (4) feet in diameter. The 
lower end of the screw is to finish in a point. 

The exact depth to which these piles must go has not been Pile Driving 
determined, but it will be from eighteen (18) feet to twenty-five (25) 
feet below the surface of the ground. The Contractor must provide 
twenty-five (25) feet of shaft and a pile cutter and screw cutter, so 
as to cut off the piles and thread them at the proper height after 
screwing them down as far as they will go. 

After the piles are in place and the tops are cut to the proper 
elevation, concrete pedestals, as shown on Sheet No. 2, are to be 
placed around them; and on these pedestals, screwed to the tops of 
the piles, will rest the shoes for the steel columns of the tower. 

The elevations and dimensions for these foundations are given 
on Sheet No. 2. 



36 



SPECIFICATIONS AND CONTRACTS. 



Cylinder Shafts 



Stairways 



Steps 



STEEL STAIR MANTEL. 

The spiral stairs will be enclosed in a steel cylinder, the axis of 
which is coincident with the axis of the tower. The diameter of this 
steel cylinder will be seven (7) feet. It is to be formed of steel 
plates one-quarter (%) of an inch in thickness, the larger dimen- 
sions of which are to be arranged vertically with the edges abutting 
and the joints spliced with four (4) inch by one-quarter (^4) inch 
plates placed on the inside. 

The lower end of this cylinder is to rest on the center pile and 
its concrete pedestal. All rivets in the stairway cylinder are to be 
one-half (i^) inch in diameter. In the lower section of the cylinder 
a door is to be placed, and at a height of three (8) feet above each 
stairway landing there is to be fitted a cast iron window frame. All 
windows are to be arranged as nearly as practicable at points ninety 
(90) degrees apart around the cylinder, and they must come about 
midway between the two columns on that side of the pyramid. 

The inside of the stairway cylinder is to be provided with angles 
for attaching three-quarter (%) inch channels and expanded metal 
lath, as the entire inside of the cylinder is to be finished with plaster. 

SPIRAL STAIRS. 

The spiral stairs will consist of one hundred and forty-eight 
(148) risers, including eight (8) quarter (%) circle landings, which 
divide the ascent into nine (9) fiights, eight (8) of which are twelve 
(12) feet nine (9) inches each in height, and containing seventeen 
(17) risers of nine (9) inches each, and one flight of nine (9) feet, 
containing twelve (12) risers of nine (9) inches each. 

The steps are to be of cast iron, the extreme radius of each 
being three (3) feet. Each step comprises a tread of twenty-two and 
one-half (22i/^) degrees of the circle, between the centers of the 
one-half (%) inch bolts which will secure the steps to each other. 

The inner end of each step is provided with a hub six and five- 
eighths (6%) inches outside diameter, which must be faced on its 
upper and lower ends to exactly nine (9) inches deep, and must be 
bored out to five and one-half (5%) inches in diameter so as to fit 
snugly over the newel pipe. 

The treads are one-half (%) inch thick and are perforated with 
lozenge-shaped openings one (1) inch wide. The gratings are one- 
half ( % > inch wide, and at their inner sections the steps are studded 
with lozenge-shaped projections to prevent slipping; and for the same 
reason a half-round bead one-eighth (Vs) inch high is raised along 
the front edge 6t each step. 



SPECIFICATIONS AND CONTRACTS. 37 

The bolt sleeves at the front of each step are to be nine (9) 
inches high and deeply counter-sunk on the upper side for the heads 
of the stair-bolts. 

All surfaces of contact between the sleeves of the adjoining steps 
must be planed. 

NEWEL POST. 

The newel post will be made of double-strength, wrought-iron Newel Posts 
water-pipe, five (5) inches inside diameter, and turned on the out- 
side to a diameter of five and one-half (Si^) inches. At each joint 
the ends must be faced so as to give perfect contact, and the joints 
must be so arranged as to bring them midway of the length of the 
hubs of the steps. On the inside the pipe must be spliced with a 
threaded coupling. 

The newel pipe should be made in seven (7) lengths of about 
sixteen (16) feet each, as nearly as may be, to bring the joints as 
stated above. 

The base of the newel pipe will be provided with a steel flange, 
which will be tap-bolted to the cast-iron base at center. 

Throughout the whole height of tower the newel must stand 
perfectly plumb. 

In the case of the Punta Gobernadora Lighthouse the cord of 
the revolving apparatus will be run through the center of the newel 
pipe, and pulleys near the upper and lower ends of the pipe must be 
provided. 

The upper end of the top section of the newel pipe will extend 
a short distance into the hub of the watch-room floor. 

DWELLING HOUSE. 

The entire space included between the columns at the base of Dwelling Houses 
the tower is to be enclosed with steel walls so as to form a dwelling. 
This space is to be divided into nine (9) outside rooms and an inner 
court. The walls and roof of this building are to be of one-quarter 
( 1^ ) inch steel plates of the style and dimensions indicated on Sheet 
No. 5. All rivets are to be one-half (%) inch in diameter unless 
otherwise noted on the drawings. 

The floor will be of concrete, supported on No. 16 expanded Floors 
metal and steel I-beams. There will be three and one-half (3l^) 
inches of broken stone or cinder concrete, mixed in the proportion 
of one (1) part of Portland cement, three (3) parts of clean, sharp 
sand, and flve (5) parts of broken stone or cinders to pass a one and 
one-half (1%) inch iron ring. On this concrete base there is to be 



38 



SPECIFICATIONS AND CONTRACTS. 



Partitions 



eoof 



laid one (1) inch of cement finish, mixed in the proportion of one 
(1) part of Portland cement and one (1) part of clean, sharp sand. 
The entire surface is to be floated to a smooth, even finish. 

All partitions are to be constructed of three-quarter (%) inch 
channels, set vertically and spaced eighteen (18) inches centers, on 
which is to be wired No. 20 expanded metal lath; and the two sur- 
faces are then to be plastered with two coats each of hard wall- 
plaster. The interior of outside walls and the ceilings are to be 
finished in the same manner as the partitions. The rooms are to 
be ventilated by registers in the ceiling, and openings are to be -left 
in the walls of the stairway mantel to conduct the air from the space 
between the ceiling and the roof and from the open court to the top 
of the mantel, all as shown on the drawings. Doors and windows 
are to be provided in the house, as shown in the plans. 

Around the edge of the roof an eight (8) inch gutter of cast 
iron is to be placed. This gutter is to be three-eighths (%) of an 
inch thick, and is to be cast in lengths of about ten (10) feet. It 
will be supported at the corners and at the center of each side with 
brackets constructed of two (2) inch by three-eighth (%) inch flat 
steel bars. Bell joints are to be provided, and they are to be 
thoroughly caulked with lead. The gutter is to have a slope of one 
(1) inch in twenty (20) feet. Two (2) conductors of six (6) inch 
wrought-iron pipe are to be provided with the necessary elbows and 
other fittings to carry the water from the gutter to the cast-iron tank 
in the yard. The pipe is to have a flange resting on the cover of 
tank and is to extend six (6) inches into same. 

Concrete steps are to be provided at the two entrances of the 
building. 

Holes are to be provided in the roof for the stove-pipe ventilators 
mentioned under "Hardware." 

For details of dwelling see Sheet No. 5. 



Carpentry 



WOODWORK. 
The woodwork for these buildings will consist of the windows 
and doors, their frames and casings, and the closets and cupboards. 
All woodwork will be of clear white pine, thoroughly seasoned, free 
from all shakes, sap, and other defects. All workmanship is to be 
first-class. All doors and sash are to be one and three-fourths (1%) 
inches thick, and are to have rain channels plowed as shown on 
drawings. Casement windows and double doors are to have moulded 
oak joint-strips inside and out. 



SPECIFICATIONS AND CONTRACTS. 39 

All outside doors leading to the central court of dwelling, doors 
in stairway and watch-room, and the two doors from office to bed- 
rooms, are to have upper panels of glass, as called for on drawings. 
All doors and sash are to be neatly moulded and well pinned and 
glued. 

All junctions of plaster and woodwork will be covered by one 
and one-quarter by one and three quarter (1^/4 x 1%) inch moulding. 
This moulding will form the casing of all doors and windows. A 
closet is to be provided in one corner of each bedroom, two (2) of 
them in the office, and a cupboard in each kitchen. 

The cupboards are to be eight (8) feet six (6) inches in height, Cabinets 
and are to be divided into two (2) compartments. The lower 
compartments are to be three (3) feet six (6) inches high, and are 
to have only a bottom shelf, each upper compartment having four 
shelves besides the division shelves. 

Drain boards two (2) feet long are to be provided for each sink. 

The lower compartments of closets are to be (2) feet six (6) 
inches high, and they are each to have three (3) shelves; the upper 
compartments are to have only one shelf at top. For details see 
Sheet No. 5. 

All woodwork is to be surfaced, sand-papered, and primed on Woodwork 
both sides before leaving the shop. It must be kept dry and must be 
securely boxed for shipment. 

All woodwork is to be treated by some process, to be approved 
by the Engineer, so as to render it non-combustible." 

The following are some characteristic specific clauses from our Example, Steel Tier 
"Specifications for a Steel Pier to be built in the Harbor of Vera 
Cruz, Mexico, for the Vera Cruz and Pacific Railway Company": 

GENERAL DESCRIPTION. 

"The structure will consist of a platform of creosoted timber, four Description 
hundred and ninety-two (492) feet long by seventy-four (74) feet 
wide, resting on steel joists, spaced about four and one-half (41,4) 
feet centers, which in turn rest on double I-beam girders that are 
supported at intervals of fourteen (14) feet six (6) inches by screw 
piles. 

These piles are thoroughly braced so as to form independent 
towers with four (4) piles to each tower, the bracing extending from 
the top down to, and in some cases even into, the sand. 

At the middle of the platform and extending over its entire 
length is a double-track railway, the rails for same resting on and 



40 



SPECIFICATIONS AND CONTRACTS. 



Piles 



spiking to the six (6) inch timber floor, of which the platform is 
composed. Between the rails is laid four (4) inch planking, and 
beyond the outer rails are beveled planks, all to facilitate the passage 
of trucks and vehicles over the rails. 

Around the entire periphery of the two sides and the outer end 
of the pier runs a twelve (12) inch by twelve (12) inch timber 
fender, bolted firmly to the metal work; and on each side of the pier 
there are located at intervals five (5) cast-iron mooring posts. 

Each railway track is supported by four (4) runs of steel 
I-beams, braced together in pairs by diaphragms of steel channels. 

The deck is swayed in a horizontal plane by adjustable diagonal 
rods that attach by clevises to the cast-iron caps over the piles. 

The tower bracing consists of horizontal struts, each composed 
of two (2) six (6) inch by four (4) inch T's and diagonal rods 
adjusted by turnbuckles. The bracing is connected to the piles by 
forged steel clamps. 

The piles, which are of seven (7) inch solid cylinders, are to be 
preferably in one length; but splices will be permitted, and, in fact, 
are provided for on the drawings. 

The screws are to be of cast iron, four (4) feet nine (9) inches 
in diameter, and are to have sockets for receiving the ends of the 
steel piles. The shoes are held in place by means of steel pins 
passing through both the pile and the shoe. 

The cross girders are to be bolted to the pile caps; the joists 
are to be riveted to the cross girders; the flooring is to be attached 
to the joists by lag screws and beveled washers; and the planking 
at railroad tracks is to be spiked to the flooring by eight (8) inch by 
one-half (^2) inch square spikes, two (2) spikes being used for 
each running foot of plank. 



Conduct of Work 



MODUS OPERANDI OF CONSTRUCTION. 

All piles are to be placed in as nearly exact position as it is 
practicable to get them. As no adjustment has been provided for in 
the bracing struts, the four (4) piles forming a tower must be sunk 
within an eighth (%) of an inch of true position. In order to 
secure such an accurate location with reference to each other, some 
form of portable, convenient, and rigid template must be used to set 
and hold the four (4) piles of each tower to exact position during 
sinking. The Contractor, before proceeding with the work, shall 
submit to the Engineer for approval a complete description and 
plans, explaining fully the method he proposes to adopt. 



SPECIFICATIONS AND CONTRACTS. 41 

The power applied for screwing the piles in place shall not be 
great enough to strain them in torsion beyond the elastic limit of 
the material. 

Great care must be exercised to get the piles down to exact 
elevation. 

All bracing must be put in under water by divers. All clamps 
must grip the piles so tightly that they will develop the full strength 
of the diagonal rods attaching to them, without slipping. All 
diagonal rods must be tightened and adjusted to the satisfaction of 
the Engineer. 

After the bracing is adjusted all towers must stand plumb, and 
the plan of each tower must be a perfect square. 

Before the timber floor is put on, the upper lateral diagonals 
must be carefully adjusted so as to bring the platform to perfect 
alignment. 

All sand and silt that would interfere with the placing of the 
bracing, as shown on the plans, must be removed; and there will be 
no direct payment for this removal, as its cost must be covered by 
the pound-price bid for the erected metal. 

BORINGS. 

Very thorough borings have been made by the Company's Borings 
engineers and the results thereof are shown on Sheet No. 1 of the 
accompanying plans. Although the said borings indicate that no 
unusual difliculty will be encountered in sinking the piles because 
of obstacles in the sand, it is possible that such obstacles do exist, 
and the Contractor must take the risk of encountering them, as there 
will be no extra compensation allowed therefor. 

PILES. 

All piles shall be sunk to exact position by means of adequate ^i^^ Driving 
machinery, power, and guide frames, all of which, before being used, 
must be approved by the Engineer. Such approval, though, shall not 
be interpreted as giving the Contractor any claim whatsoever for 
avoidance of responsibility in respect to correctness of final position 
of piles. 

All piles are to be screwed down to the elevations shown on 
Sheet No. 1; but if there be any slight inequality in elevations of 
tops of piles, the same shall be adjusted by means of thin, cylindrical 
shimming plates, seven (7) inches in diameter, to be placed between 
the heads of the piles and the cast-iron caps. Should any pile be 
left too high, its top shall be sawed off to exact level; but, as this 



42 SPECIFICATIONS AND CONTRACTS. 

would be expensive, the Contractor should endeavor to sink all piles 
a trifle low, so as to shim upon each a small amount. He should 
also provide an ample number of shimming plates of various thick- 
nesses. The greatest variation of height of column to be taken up 
by shimming plates shall in no case exceed one and one-half (ll^) 
inches. 

No variation in elevation of tops of pile castings exceeding one- 
sixteenth (1-16 )of an inch will be permitted. The spaces between 
the pile heads and sockets of castings shall be filled completely with 
hot, thick asphaltum, by putting an excess thereof in the casting 
just as the latter is about to be placed, and the said asphaltum must 
be held permanently in the annular space by caulking tightly with 
sheet lead from below. 

This work must all be done to the satisfaction and acceptance of 
the Engineer, and there will be no direct payment made for either 
lead, asphaltum, or labor involved in putting these in place, as the 
pound-price for the metal-work must cover the cost of these materials 
and labor. 

PAINTING. 

Tainting All metal-work before leaving the shop shall be thoroughly 

cleansed from all loose scale, rust, and dirt, and shall then be given 
one coat of paint, which coat shall be thoroughly dried before the 
metal-work is loaded for shipment. It is absolutely essential that 
the entire surface of the metal-work be thoroughly cleansed by the 
most effective known methods, such as the use of wire brushes, then 
the painter's torch, and in certain cases the application of a strong 
caustic solution, followed by scraping, washing with clean water, 
and drying. ( 

In riveted work all surfaces coming in contact shall be extra 
well painted before being riveted together. Bottoms of bed-plates, 
bearing-plates, and any other parts which are not accessible for 
painting after erection shall have three (3) coats of paint, one at 
the shop, and the other two in the field before erection. Pins, bored 
pin-holes, and all other polished surfaces shall be coated with white 
lead and tallow before shipment from the shop. 

Oil should be used as the lubricant for reaming, but, should soap- 
suds be employed, all parts of the metal affected thereby must be 
washed thoroughly and dried before any painting is done thereon. 

After the structure is erected, the metal-work shall be thoroughly 
cleansed from mud, grease, or any other objectionable material that 



Paints 



SPECIFICATIONS AND CONTRACTS. 43 

may be found thereon, then thoroughly and evenly painted with 
two (2) coats of paint. 

The paint to be used on the metal-work is known as Lsiter's 
Air-Drying Paint, sold by the L. Z. Leiter Co., 81 South Clark street, 
Chicago, 111., and costing there one dohar and twenty-five cents 
($1.25) per gallon. The Engineer reserves the right to substitute 
any other paint, which, in his opinion, is equally good or better for 
resisting the corrosive effects of salt water. 

All three coats of paint given to the metal-work are to be of 
distinctly different shades or colors, and the second coat must be 
allowed to dry thoroughly before the third coat is applied, 

No thinning of paint with turpentine, benzine, or other thinner 
will be allowed without special written permission from the 
Engineer. 

No painting is to be done in wet weather. 

All painting is to be done in a thorough and workmanlike 
manner, to the satisfaction of the Engineer, and no paint whatever 
is to be used on the structure without first being approved by the 
Engineer. 

All materials for painting shall be subject at all times to the 
closest inspection and chemical analysis, and the detection of any 
inferior quality of such material, in either shop or field, shall involve 
the rejection of all suspected material at hand and the scraping 
and repainting of those portions of the work that, in the opinion of 
the Engineer, were defectively painted on account of such inferior 
material. 

All recesses that would retain water or through which water 
could enter must be filled with thick paint or some waterproof 
cement before receiving final painting. All surfaces so close 
together as to prevent the insertion of paint-brushes must be painted . 
thoroughly by using a piece of cloth instead of the brush. 

LOADING METAL-WORK ON VESSEL AND PREPARING SAME 

THEREFOR. 

Pains must be taken to mark clearly every piece, bundle, or shipping 
package with the shipping address and destination, with the names 
and numbers of pieces, and with any other such mark of identifica- 
tion as may be necessary to insure the correct disposition of the 
material. 

All small parts, such as rivets, bolts, nuts, washers, pins, fillers. 



44 SPECIFICATIONS AND CONTRACTS. ' 

small connection-plates, etc., shall be boxed strongly, and the con- 
tents shall be marked plainly on each box, in addition to the shipping 
address mentioned above. 

All lateral angles shall be bolted together in pairs ; and as many 
of such pairs shall be bundled together with clamps or wires as will 
be convenient for handling without injury in loading and unloading. 

All pieces with open- ends, such as truss-members with forked 
. ends, or laterals with unsupported plates or angles, or any other 
parts liable to injury in handling, shall have the ends packed with 
heavy blocks of timber, bolted thoroughly between the projections 
or to the body of the member in such a manner as to prevent any 
bending or other injury in handling or on shipboard. 

All nuts on any rods or bolts shipped loose shall be screwed 
tightly in place, and the threads thereof shall be wound closely with 
twine, so that the nuts cannot come loose and be lost off in 
handling. 

The shipping invoices or lists are to be made to correspond to 
the bundles, boxes, and packages, so that each item on the list can 
be identified readily. 
Loading During both the loading on steamer and the unloading from 

same, special care shall be taken to avoid injuring any of the metal- 
work, and the loading shall be so done as not to overstrain unduly 
any part and so as to prevent any shifting during the voyage. If, in 
spite of all precautions, some of the metal-work be injured, the entire 
expense to which the Company is put because of such injury shall be 
borne by the Contractor. 

All the expense involved by these special shipping and loading 
directions shall be borne by the Contractor, as no extra payment 
will be allowed therefor." 

I desire to call your attention to the importance of including 
in specifications for metal-work that is to be transported by water 
full instructions for loading the material in such a manner as to 
reduce to a minimum the danger of injury in transit. Unless this 
matter receive due consideration in the specifications, and unless 
the latter be strictly lived up to in this particular, the metal is 
liable to be so damaged during transportation as to necessitate the 
rejection and replacement of some important parts, thus involving 
for the construction long and often serious delays.^ 



1 Provide for bill of lading and secure control of materials as against 
creditors and others, if possible. 



SPECIFICATIONS AND CONTRACTS. 45 

• The following characteristic clauses are taken from our "Specifi- Example, Pipe Line 
cations for Steel Pipe Line for the City of Kansas City, Mo.": 

GENERAL DESCRIPTION. 

"The work is to consist of a buried pipe line, covered to a depth Description 
of at least three (3) feet above the top thereof. 

The pipe shall be forty-eight (48) inches internal diameter ripe 
(irrespective of the rivet heads), and shall be made of soft steel 
one-half C^/j) inch thick. 

Bidders, however, shall tender also on a pipe of thirty-six (36) 
inches minimum internal diameter (irrespective of the rivet heads), 
made of soft steel three-eighths (%) of an inch thick. 

All joints are to be lap-joints, the longitudinal ones being Manufacture 
double-riveted, and the transverse ones single-riveted. 

The length of the over-lap for the longitudinal joints shall be 
five and one-half (5i4) inches, and that for the transverse joints 
threa (3) inches. 

There shall be but one longitudinal joint in any section of pipe. 

All rivets are to be of soft steel, three-quarters (%) of an inch 
in diameter and spaced two and one-half (2^4) inches centers, as 
shown on the accompanying drawings. 

The pipe is to be built in sections telescoping into each other, 
each section being seven (7) feet long, and there being four (4) 
sections riveted together in the shops, thus making the total length 
of pipe for shipment twenty-seven (27) feet three (3) inches from 
out to out, four (4) of such forty-eight (48) inch pipes making a 
carload. 

The distance from center line of rivets to edge of plate is to be 
one and one-half (II/2) inches. 

The larger sections shall be of such internal diameter that the 
smaller sections will fit tightly inside them after the lap-joints have 
heen drawn out to thin edges. 

All joints are to be caulked so as to be absolutely water-tight 
under a three hundred (300) foot head. 

The longitudinal joints are to be so located that, when the 
pipe is laid, they shall lie on top thereof alternately to right and 
left of the vertical axial plane, and so that the nearer row of longi- 
tudinal rivets shall be six (6) inches therefrom. 

All pipe shall be formed to correct cylindrical shape, and any 
lengths discovered to be out of true will be rejected. 



46 SPECIFICATIONS AND CONTRACTS. 

Where the pipe passes beneath any railroad track, it shall be 
stiffened as follows: 

Six (6) longitudinal angle-irons 3 inches x 3 inches x ^-inch shall 
be spaced, as nearly as possible, equi-distant around the periphery 
of the pipe and riveted thereto, fillers being placed beneath them 
to afford a flush bearing. These angle-irons are to be twenty-seven 
(27) feet long, as they must run without splicing the full length of 
the four (4) continuous seven-foot sections. 

At the middle of each seven-foot section there is to be a ring 
of 3-inch x 3-inch x %-inch angles in six (6) pieces (so as to lie 
between the longitudinal stiff eners) riveted to the pipe. 

Finally, there is to be a single 6-inch x 3 1/^ -inch x % -inch angle- 
iron bent to a true circle with the long leg vertical, the said leg 
riveting to the vertical legs of the previously mentioned ring angles. 

It will be necessary to notch the six-inch leg so as to straddle 
the radial legs of the longitudinal stiffeners. 

The joint in this outer ring is to be placed opposite the middle 
of one of the six pieces of circular angle-iron, and the said joint is 
to be spliced with a piece of plate ten (10) inches wide, bent to fit 
outside of the 6-inch x 3i/^-inch angle. 

The details of the stiffening are shown clearly on one of the 
accompanying drawings. 

Where two of these stiffened pipes come together in the field, 
each opposing pair of longitudinal stiffeners is to be spliced by 
attaching to the vertical leg thereof a piece of 3-inch x 3-inch x 
%-inch angle, two (2) feet long, riveted through one leg to the 
stiffeners and through the other to the pipe, there being four (4) 
rivets to each leg on each side of the joint. 

FORMATION OF ANGLES AND CURVES. 

Angles and Curves Where angles or curves occur in the alignment or grade of the 

pipe line, the plates are to be cut and punched to the required bevel 
so as to produce an oblique angle at the circular seam, carrying this 
style of construction over a sufficient length of pipe to secure the 
total deflection required. It may in some cases be necessary to 
enlarge slightly the exterior lengths of pipe; but extra care will have 
to be taken to caulk all such oblique joints. 

PROTECTION OF METAL. 

Trotection The pipe shall be dipped vertically in a bath of Assyrian 

Asphalt, Smith's Durable Metal Coating, Mineral Rubber Coating, 



SPECIFICATIONS AND CONTRACTS. 47 

or some other paint which, in the opinion of the Engineer, is equally 
as good as any of those just named. 

The coating shall be heated to a temperature of four hundred 
(400) degrees F. or more, and all pipes shall receive a uniform 
coating of not less than one-thirty-second (1-32) of an inch in 
thickness. 

After the sections have been removed from the dipping tank, 
they shall be set vertically to dry. All joints shall receive three 
(3) coats of paint before they are riveted up. All spots on which 
the coating has been injured in handling must be thoroughly 
recoated. 

The particular kind of coating to be used will be decided later 
by the Engineer." 

And now, although I have read many of these specific clauses Conclusion 
simply by title, intending to let you study them thoroughly later on 
if you so desire, it appears to me that you have had about enough 
of this ultra-technical discourse, and that, if I don't cease talking 
pretty soon, you will be tempted to nickname me "Dr. Dryasdust"; 
consequently, I shall say no more about specifications, except that I 
advise every one of you to make a special study of the subject; first, 
by collecting and perusing carefully a number of truly first-class 
specifications written by engineers of wide experience; and, second, 
by attempting to write for yourselves specifications for various 
types of engineering construction. Remember that you cannot hope 
to learn to write even approximately complete and correct specifica- 
tions until after you have had many years of practical experience 
in engineering work; therefore, do not be discouraged, if at first 
you find the task too great for your unavoidably limited experience. 

In concluding this series of lectures, I beg to thank you, young 
gentlemen, for the attention and courtesy you have shown me and 
for the appreciation of my efforts that you have manifested. 



Examples for Practice in Specification 

Writing. 



Writing Specifica- 
tions 



Adopting Others' 
Work 



Drawings 



Topics 



Before the student attempts to write one of the specifications 
outlined in the following list, he should obtain and study one or 
more actual specifications for similar work. To this end the pro- 
fessor should make and retain for the use of his classes a large 
collection of good, sound specifications, dealing with the various 
types of construction covered in the list. 

The student is warned against copying blindly from these 
documents, for they should be employed merely as guides to indi- 
cate the ground that ought to be covered in the specification that 
is about to be prepared. In case it is desirable to shorten the 
student's work, it will be proper for him to give merely the 
headings for various paragraphs that are of a standard nature, 
and to refer concerning them to certain well-known general specifi- 
cations, such, for instance, as those of the author's De Pontibus; but 
it would not be right so to refer to any special specifications that 
are not available to the public. For example, it would be eminently 
correct to refer to Cooper's Bridge Specifications, but not to those 
of the Pennsylvania Railroad Company. 

If the student's specifications are assumed to have drawings 
attached, the first thing for him to do is to determine in his mind 
exactly of what these drawings should consist, how many sheets they 
should occupy, and what each sheet should contain; then he should 
prepare a descriptive list of them for insertion in the proper place 
in the specifications, which, by the way, is near the beginning. 

The next step to take is to make a complete list of headings 
and then arrange these in proper order. On page 10 will be found 
an alphabetically arranged list of headings for certain specifications 
that can be used as a guide in determining the ground that 
the student should cover; and he is likely to obtain considerable 
assistance on this point by a perusal of actual specifications of a 
like character. The list of headings should be made in some logical 
order — i. e., the various items should not be inserted at haphazard. 



SPECIFICATIONS AND CONTRACTS. 49 

The best arrangement is perhaps chronological in respect to the 
building of the structure under consideration; but it is not prac- 
ticable to follow this order rigidly throughout the entire document, 
for there are many items that are absolutely independent of any 
chronological sequence. Failing the latter, a good rule to go by is 
that one item ought naturally to suggest the succeeding one. If 
these two ideas be kept in mind and be allowed to govern, the result 
of the student's effort at technical writing will not be open to severe 
criticism because of want of proper continuity. 

After the student has finished writing a set of specifications, 
and has numbered the pages thereof, he should prepare an alpha- 
betical index of headings with the page numbers alongside. 

The following forty examples are of a diverse character, con- Remarks 
sequently the student can have a choice of subjects; and, moreover, 
he can choose also as to the comparative difficulty or complexity 
of the specifications he is to write, because some of the examples are 
simple while others are not. None, however, are extremely 
difllcult, but few of them being as complex as the average specifi- 
cations of most engineers' every-day practice. 

If the student find that the . data given for any of these 
"Examples" are insufficient for his purpose, he will be at liberty 
to supply the omissions or deficiencies according to his best judg- 
ment. 

All the specifications should be drawn with the idea in view of 
calling for tenders on the work. 

EXAMPLE NO. 1. 

Prepare complete specifications for a concrete retaining wall. Retaining Wall 
from twelve (12) to twenty-one (21) feet high above base of footing 
course and twelve hundred and fifty (1,250) feet long, to hold back 
a sloping bank of earth, the foundations to be at least five (5) feet 
below the surface of the ground. Joints, to prevent cracking, are to 
be placed at intervals of not more than forty (40) feet. The work, 
which is located in New Westminster, British Columbia, is to be 
built by the Government of that Province. Payments are to be 
made monthly on the Engineer's estimates with the usual retention 
of ten (10) per cent, thereof until the completion of the contract. 

Portland cement is to be used exclusively for the concrete. The 
wall is to be strictly first-class in every particular. 

EXAMPLE NO. 2. 
Prepare complete specifications for a concrete arch culvert ten ^^^^ Culvert 
(10) feet in diameter and one hundred and twenty-eight (128) feet 



50 



SPECIFICATIONS AND CONTRACTS. 



Grading 



Bock Tunnel 



Tunnel in Clay 



long, to be covered later by an earth embankment about forty (40) 
feet high. Location, near Buda, Texas, on the I. & G. N. Ry. Con- 
struction first-class throughout. The opening at present is main- 
tained by a wooden trestle. Provide for non-interference with 
railroad traflBc. The work must be done in the dry season when 
there is very little water passing. 

EXAMPLE NO. 3. 

Prepare complete specifications for doing all the grading (solid 
rock, loose rock, and earth) for a railroad fifty-four (54) miles long, 
starting at Palestine, Texas, and running northward. 

EXAMPLE NO. 4. 

Prepare complete specifications for building a tunnel eight 
hundred and fifty-five (855) feet long through rock for a single-track 
railway that is not yet in operation, although the track reaches near 
both ends of the hill through which the tunnel is to pass. The roof 
may or may not need lining, for the character of the rock is as yet 
undetermined, except on the surface where it gives promise of being 
hard within. 

Bids are to be called for per lineal foot of tunnel both unlincd 
and lined. 

EXAMPLE NO. 5. 

The Metropolitan Street Railway Company had a tunnel along 
Eighth street in Kansas City, Mo., in which the grade was nine 
and one-half (9.5) per cent., and desired by starting at the west 
end to lower the bottom so as to change the grade to four and one- 
half (4.5) per cent. The material was stratified rock of a very 
variable character, full of faults and clay seams. On this account 
special care had to be taken to prevent caving in and bulging of 
sides, also undermining of roof. Small blasts were, therefore, 
necessitated. 

No attempt was made to maintain traffic during the reconstruc- 
tion. 

Wherever soft material was found under the side walls it had 
to be removed and replaced with first-class Portland cement concrete. 

From the east end of the tunnel to Broadway there was to be 
an open cut, mostly through earth, with substantial side walls of 
concrete. In doing this part of the excavation there was great 
danger of undermining the foundations of some adjacent high build- 
ings. Assume that complete detail plans for the reconstruction were 



SPECIFICATIONS AND CONTRACTS. 51 

on file at the Engineer's oflSce of the Metropolitan Street Railway- 
Company, and prepare a proper set of specifications on which to 
call for bids. 

EXAMPLE NO. 6. 

Prepare complete specifications for the manufacture and putting Pipe Line 
in place of a forty-eight (48) inch steel riveted pipe-line made of 
half-inch metal, about four and a half (4.5) miles long, with man- 
holes every five hundred (500) feet. General depth of top of pipe 
below surface of ground to be four (4) feet. There are six (6) 
under-crossings of railroad tracks requiring the pipe there to be 
properly stiffened so as to carry the weight of passing trains. 

Pipe to be lap-jointed; rivets % inch in diameter, staggered. 
Shop riveting to be done by power, and all field riveting by pneu- 
matic hammers. 

About fifteen (15) per cent, of the line is to be on curves, as 
shown by plans and profiles on file in the City Engineer's office at 
Des Moines, Iowa, near which city the line is to be built to convey 
the main water supply for the said city. 

The pipe is to be tested in sections under a static pressure of 
one hundred and thirty (130) pounds per square inch. 

Time limit for completion of work is to be eight (8) months. 

Bids are to be per pound of pipe in place, and per cubic yard 
of earth and rock excavated, including backfilling. 

Special attention must be given in the specifications to the 
painting of pipe and to making it perfectly tight. 

The student will be at liberty in this "Example" to refer to 
certain clauses in the specifications of De Pontibus, or other standard 
specifications for steelwork, so as to shorten his labor as much as 
possible. 

EXAMPLE NO. 7. 

Prepare the specifications for the concrete piers and abutments Abutments and 
of a single-track railway bridge about fifteen hundred (1,500) feet 
long, consisting of fifteen (15) deck, plate-girder spans. Bed of 
stream is solid rock that will not have to be cut into more than a 
foot to obtain a satisfactory foundation. 

The stream is practically dry for six (6) consecutive months of 
the year, and the construction is to be done during the dry season. 
The surface of the bed-rock is almost horizontal over the entire 
crossing. Distance from grade to bed-rock is about sixty (60) feet. 
No ice-breaks on piers will be required. 



52 



SPECIFICATIONS AND CONTRACTS. 



The structure is for a new line, hence it will not be necessary 
to figure on maintaining traffic. 

There is a quarry of good rock for broken stone quite near 
the bridge site, and satisfactory sand can be had for the digging 
within three (3) miles. The nearest railroad station is about two 
(2) miles from the site. The location of the work is in western 
Texas. Bids are to be called for at schedule rates. 



Masonry Piers 



Railroad Bridge 



EXAMPLE NO. 8. 

Prepare complete specifications for stone masonry piers with 
concrete backing for the same crossing, taking the stone from the 
same quarry as before. Masonry to be first class. Foundation pits 
to be leveled off with concrete. Bids are to be called for at schedule 
rates. 

EXAMPLE NO. 9. 

Prepare complete specifications for the substructure of a single- 
track railroad bridge across the Papaloapam River in Mexico, con- 
sisting of two (2) concrete abutments resting on pile foundations 
(the tops of the piles being encased in the concrete), five (5) ordi- 
nary piers, and one pivot pier. The concrete shafts of the piers 
rest on timber cribs and caissons sunk by open dredging about fifty 
(50) feet below the bed of the river, which is about forty (40) feet 
below the grade line of structure. Width of river about eleven 
hundred (1,100) feet. A satisfactory mixture of clean sand and 
gravel can be dug from the river bed near the site and used for 
concrete as it is found, but the proper amount of cement for filling 
the voids must be determined often by measuring the latter. 

The timber for the cribs and caissons must be imported from 
Louisiana or Texas. All materials will be delivered at bridge site 
free of charge for hauling over the railroad company's lines. 

Seven (7) months from the date of signing the contract will be 
allowed for completing the work. Liquidated damages are to be 
one hundred dollars ($100) gold per day. Bids are to be called 
for in American money as follows: Per cubic yard of mass of cribs 
and caissons in place. Per cubic yard of shafts of piers and of 
portions of abutments above low-water level as the latter is shown on 
the accompanying plans. Per cubic yard of those parts of the abut- 
ments below low-water level, including portions of piles encased in 
the concrete. Per lineal foot of piles in place projecting below the 
concrete in the abutment foundations. 



SPECIFICATIONS AND CONTRACTS. 53 

EXAMPLE NO. 10. 

Prepare the specifications for a reinforceJ-concrete arch high- Reinfoi-cod-Concrete 

Arch Bridge 
way bridge of one hundred and five (105) feet clear span and 

twenty (20) feet rise, resting on a solid rock foundation and spring- 
ing from the rocky sides of a gorge above high-water mark, the clear 
width of roadway between parapet walls being thirty-four (34) fest. 
Assume that there is no special risk from floods during erection. 

Bids are to be per cubic j^ard of concrete and per pound of the 
reinforcing metal, also per cubic yard for excavation in both rock 
and earth, 

EXAMPLE NO, 11. 

Prepare the specifications for a main sewer of concrete, two Main Server 
and a half (2i/^) miles long and six (6) feet in diameter, for the 
city of Rochester, N, Y., and provide for the connections for lateral 
sewers, ventilators, man-holes, and all other details. Excavation is 
partly through earth and partly through rock. In one stretch of a 
quarter of a mile the foundation is so soft and wet as to require 
piling. Call for bids per lineal foot of finished sewer in accord with 
the plans and specifications which are on file in the City Engineer's 
Office, 

EXAMPLE NO, 12. 

Prepare complete specifications for the manufacture and ship- ^^- ^- Bridge 
ment of the metal-work for four (4) single-track, through, riveted- 
truss spans, each two hundred (200) feet long, measured between 
centers of pedestal pins, designed according to Class R, of Waddell's 
"Specifications for Steel Bridges," and weighing about 2,650 pounds 
per lineal foot of span. Point of delivery of metal is Beaumont, 
Texas, 

Time allowed for manufacture and delivery is four (4) months. 
Metal is medium steel. Four (4) sheets of drawings will be 
required. 

EXAMPLE NO. 13, 

Prepare complete specifications for the manufacture of a '^^'^^ ^^ ater-Tank 
cylindrical steel water-tank, twenty (20) feet in diameter and sixteen 
(16) feet high, carried by a braced steel tower fifty (50) feet high, 
resting on concrete pedestals that are supported on earth founda- 
tions capable of withstanding a vertical load of four thousand 
(4,000) pounds per square foot. 

Location alongside of a railroad in a small Missouri city. 



54 



SPECIFICATIONS AND CONTRACTS. 



Call for bids per pound of metal erected and painted and per 
cubic yard of concrete in place, no direct payment being made for 
excavation. 

EXAMPLE NO. 14. 

R. R. Trestle Prepare complete specifications for a single-track railroad trestle 

to be built of long-leaf yellow pine timber, resting on cypress piles 

of best quality. Length of trestle about two thousand (2,000) feet, 

and average height from ground to grade about thirty-five (35) feet. 

Piles to be creosoted and timber to be painted with Carbolineum. 

Call for bids for timber in place, painted, per M. ft. B. M., 
creosoted piles left in place per lineal foot of pile, cut-off ends of 
same per lineal foot, iron in place per pound, and laying rails per 
lineal foot of track, the rails being furnished by the railroad 
company. 

EXAMPLE NO. 15. 
Concrete Dam Prepare complete specifications for a curved concrete dam sixty 

(60) feet high and seven hundred and twenty (720) feet long, 
located at a narrow part of a rocky gorge, near Boulder, Colo. 
Bottom and sides of the canon are of solid rock. Large quantities 
of water pass in the wet season, but there is practically none passing 
in the dry season, which is usually of seven (7) months' duration. 
Plenty of good stone and sand for concrete are to be found near the 
site, but the cement will have to be transported by wagon thirty- 
five (35) miles from the nearest railroad station. Provide for a 
temporary dam of timber and clay to hold back the small amount of 
water passing in the dry season, in order that the footing of the 
concrete dam may be built in the dry. 



Railroad 



EXAMPLE NO. 16. 
Prepare specificatiors for the building of a railway, complete in 
every particular (excepting only the bridges, buildings, and rolling- 
stock), one hundred and twenty (120) miles long, located in the 
State of "Washington. The contract is to be let at schedule prices 
for everything, and the entire work is to be completed and turned 
over to the Company within twelve (12) months. 



Timber Pier 



EXAMPLE NO. 17. 
Prepare complete specifications for a pier to be built of creosoted 
timber and piles in Galveston Bay. Length, six hundred and forty 
(640) feet, width sixty-four (64) feet, and height eighteen (18) feet 
above extreme low-water level. 



SPECIFICATIONS AND CONTRACTS. 55 

The construction to be of the most substantial character, and 
the piling to be thoroughly sway-braced. Deck to be built of six- 
(6) inch planks. Structure to carry two railway tracks at middle 
over its whole length. 

Live load 350 pounds per square foot of floor. 

EXAMPLE NO. 18. 

Prepare complete specifications for a deck, plate-girder turn- Turntable 
table on a concrete foundation and having the pit-wall also of con- 
crete. Capacity must be great enough to take care of the longest 
and heaviest locomotives ever built. To be operated by electricity. 

N. B. — The specifications need not cover the operating machin- 
ery, except in a merely descriptive manner. 

EXAMPLE NO. 19. 

The metal-work for two (2) through, riveted spans of one hun Cleaning and Re- 
painting 
dred and twenty (120) feet each and for three (3) deck, plate- 
girder spans of forty (40) feet each was dropped overboard by the 
capsizing of a barge in the harbor of Vera Cruz, Mexico, and was 
afterward raised, taken ashore, and piled. The result was that it 
rusted very badly and had to be thoroughly cleaned by sand-blast, 
etc., and repainted before being shipped to bridge site. 

Prepare the specifications for cleaning and repainting the said 
metal-work. 

EXAMPLE NO. 20. 

Prepare complete specifications for building a brick chimney two Brick Chimney 
hundred and fifty (250) feet high for the Orford Copper Company 
on Staten Island, N. Y. 

The contract to be let for a lump sum. Foundation is hard 
clay. 

EXAMPLE NO. 21. 

Prepare complete specifications for building a brick well fifty Well 
(50) feet in diameter and forty (40) feet deep, resting on a steel 
curb and sunk through sand to obtain a water-supply. Contract to 
be let for a lump sum. 

EXAMPLE NO. 22. 
Prepare complete specifications for building two parallel rock- Rock Jetties 
jetties, each about half a mile long, at Brazos de Santiago, 
Texas, so as to obtain a channel having a minimum depth of 
fourteen (14) feet, the distance apart of the jetties being about five 
hundred (500) feet. The work is to be done by contract with the 
United States Government. 



56 



SPECIFICATIONS AND CONTRACTS. 



Dyke 



Settling Basins 



Asphalt Paving 



Wood-Block Paving 



Excavation 



Bids are to be made per lineal foot of jetty for heights measured 
from base to top, varying by one foot, from a minimum of six 
(6) feet, to a maximum of twenty-four (24) feet. 

EXAMPLE NO. 23. 

Prepare the specifications for a trailing, wattled-pile dyke, three- 
quarters of a mile long, with wattled cross-dykes at intervals of 
about three hundred (300) feet, to be built along the bank of the 
Missouri River at East Omaha, Neb., mainly for the purpose of 
stopping the river's encroachment, but incidentally also for making 
land so as to increase the holdings of the East Omaha Land Com- 
pany. The front of the trailing dyke is to be protected against 
scour by a woven willow mattress sixty (60) feet wide and as long 
as the dyke, the piles of the latter being driven through the mat- 
tress near the shore edge. 

Bids are to be made per lineal foot of pile in place, per M. ft. 
B. M. of timber in place, per pound of iron in place, and per square 
foot of mattress complete in place, including the anchorage stones. 

EXAMPLE NO. 24. 

Prepare complete specifications for four (4) settling basins to 
be constructed for the purpose of purifying the water supply of 
Richmond, Va., and to provide for the needs of a city of 125,000 
inhabitants. 

Bid to be called for by a lump sum. 

EXAMPLE NO. 25. 
Prepare complete specifications for paving with asphalt a street 
in Baltimore four thousand eight hundred and fifty (4,850) feet 
long and forty-four (44) feet wide between curb lines. Entire con- 
struction to be of the very best. Tenders to be made per square 
yard of finished pavement. 

EXAMPLE NO. 26. 
Prepare similar specifications for the same contract, but using 
creosoted yellow pine blocks instead of asphalt. 

EXAMPLE NO. 27. 

The earth has been excavated to the full depth of the founda- 
tions for a large building in Chicago, and the bearing capacity of 
the soil is to be tested at a number of points distributed with some 
uniformity over the whole area. A special apparatus is to be 
designed for loading with pig-iron. 

The work is to be paid for at actual cash cost, plus a percentage 
thereof for profit to be named by each bidder tendering, the one 



SPECIFICATIONS AND CONTRACTS. 57 

naming the lowest percentage to receive the award of the contract, 
only responsible parties being permitted to compete. Prepare the 
necessary specifications. 

EXAMPLE NO. 28. 

Prepare complete specifications for building three and one- Electric Railway 

Track 
quarter (31/4) miles of double track for an electric railway on the 

paved streets of the city of Chicago, including the furnishing and 

placing of stone-block pavement on the space between the two outer 

rail'; and on two (2) feet outside thereof. Rails to weigh ninety 

(90) pounds per yard, and ties to be of creosoted, long-leaf, yellow 

pine. 

Bids are to be made per lineal foot of double track. Describe 

carefully in detail the style of track and pavement. 

EXAMPLE NO. 29. 

Prepare specifications for the metal-work of a large, steel-skeleton steel Building 
building to be erected in New York City. It will be permissible 
when treating of character of metal and metal-work to refer clause 
by clause to well-known standard specifications for manufacture 
of steel and of steel structures. 

Assume the various leading dimensions of the building and 
describe in detail the design of the metal-work. 

Bids are to be by the pound of metal erected and painted. 

EXAMPLE NO. 30. 

The new five hundred and twenty (520)-foot swing span of the Swingbridge 
East Omaha bridge over the Missouri River has located in its tower 
a small power-house, absolutely fireproof, to contain a portion of the 
electrical machinery. The construction is of steel and concrete. 

Draft the specifications for such a house. 

EXAMPLE NO. 31. 
Prepare complete specifications for a through train-shed to be Train-Shed 
built on the reclaimed lands at the north end of Kansas City, Mo., 
the length being nine hundred (900) feet and the width two hundred 
and eighty (280) feet. Use tin roof of best quality, wooden louvres, 
skylights of wired glass, copper gutters and down-spouts, and all 
other details of the very best kinds employed in similar structures. 
The trusses are to be of the cantilever type, each resting on two 
columns that must act also as beams to resist the wind pressure. 
There are to be no side walls, excepting that at the south side of 
the shed the north wall of the depot building will serve as such; 
The foundations are to be large concrete pedestals resting on piles 



58 



SPECIFICATIONS AND CONTRACTS. 



Roundhouse 



Sea Buoy 



Floating Foundation 



Bridges 



Ocean Pier 



Steel Lighthouse 



of concrete or creosoted timber driven to whatever depths may he 
found necessary. 

EXAMPLE NO. 32. 
Prepare complete specifications for a brick roundhouse to accom- 
modate twelve (12) locomotives. Foundations to be of concrete 
resting on hard clay. 

EXAMPLE NO. 33. 
Prepare complete specifications for a large sea-buoy to be built 
of steel, including the necessary cable and anchor or anchors. In 
respect to character and quality of materials and workmanship it 
will be permissible to refer to standard clauses of well-known specifi- 
cations for steel construction. The item of water-tightness should 
receive special consideration. 

EXAMPLE NO. 34. 

Prepare complete specifications for a fioating foundation of steel 
and concrete for a large eight (8)-story hotel building for the city 
of New Orleans, designed according to the author's method as given 
in his paper upon "Foundations for Important Buildings in the City 
of Mexico," which paper is included in Mr. John Lyle Harrington's 
book, entitled "The Principal Professional Papers of Dr. J. A. L- 
Waddell, Civil Engineer." 

As in other cases it will be permissible to refer to certain stand- 
ard clauses concerning materials and workmanship for the steel 
as given in well-known specifications. 

EXAMPLE NO. 35. 

Referring to Case No. 3 in the appended examples for contract 
writing, prepare the specifications therein mentioned for the erection 
of the four spans. 

EXAMPLE NO. 36. 

Referring to Cases Nos. 8 and 9 in the appended examples for 
contract writing, prepare the specifications therein mentioned for 
building the Ocean Pier. 

EXAMPLE NO. 37. 

Prepare complete specifications for a steel lighthouse supported 
on screw-piles to be erected on the coast of Texas, the total height 
being one hundred and five (105) feet above low water, and the 
floor of the living rooms being placed at an elevation of twenty-five 
feet above same. The specifications for the lantern itself may be 
omitted, excepting that its size and character should be described. 
The foundations for the structure are solely sand. Bids are to be- 
by lump sum. 



SPECIFICATIONS AND CONTRACTS. 59 

EXAMPLE NO. 38. 

Prepare complete specifications for the erection by flotation at Bridge 
Boca del Rio (which is some fifteen (15) miles south of Vera Cruz, 
Mexico) of eight single-track railroad, deck, plate-girder spans, the 
piers and abutments for which are in place. As the rise and fall of 
tide there are small and slow, it will be necessary to figure on letting 
water into the barges in order quickly to bring the spans to rest 
on the bridge seats. 

Bids are to be per pound of steel erected (the metal being 
furnished by the railroad company), per M. ft. B. M. of timber 
furnished and put in place by the contractor, and per lineal foot 
of track for laying the rails, which are to be provided by the 
company. 

EXAMPLE NO. 39. 

Prepare complete specifications for a steel tower somewhat Tower 
similar to the Eiffel Tower in Paris, a quarter of a mile high and 
having a base four hundred and forty (440) feet square between 
centers of main pedestals, to be constructed in the city of 
Chicago. 111. 

Foundations of the concrete pedestals to be piling of concrete 
or creosoted timber. Buildings of various kinds are to be placed at 
different heights in the tower, and near the top there is to be a 
dancing pavilion. 

The Author once made a design for such a tower, but prepared 
no specifications. He would be pleased to furnish copies of the 
drawings to any student who desires to undertake the drafting of 
specifications for this "Example." However, he does not advise 
many of them to try it, as the said specifications would have to be 
long and complex, although portions of them, such as those for the 
elevators and buildings might be omitted. 

EXAMPLE NO. 40. 

Prepare complete specifications for the viaduct referred to In Viaduct 
Cases Nos. 1 and 2 of the appended examples for contract writing. 
The total length of the structure is about twenty-five hundred and 
fifty (2,550) feet, its greatest height about ninety-five (95) feet, the 
width of main roadway thirty-four (34) feet, and that of each of the 
two sidewalks four and one-half (4.5) feet. The structure is to 
occupy city property only, being located entirely on Marshall street. 

The student will have to assume the quantities of the various 
materials on which he is to call for bids, as these have not yet been 
computed. 



Engineering Contracts. 



A Lecture to Civil Engineering Students, 
Delivered ia 1905. 



Introduction 



Sequel to 
tions 



Specifica- 



Contracts and Speci- 
fications Distin- 
guished 



Young Gentlemen — Some two years ago I delivered to the Senior 
Class of the Rensselaer Polytechnic Institute a lecture on the subject 
of "Specifications," and in it I touched but lightly on that of "Con- 
tracts," merely quoting from the standard form of contract of my 
firm certain clauses that were needed to make my discourse com- 
plete. Engineering contracts, however, are of such importance to 
the profession as to be worthy of a special lecture devoted to their 
discussion, and this I purpose giving you to-day. The fact that the 
subject is treated very thoroughly in several standard works might 
at first thought lead one to believe that a lecture on it is superfluous, 
but such is not the case, because what I have to say is in a sense 
supplementary to that which is found in the books. Moreover, by 
discussing it from the strictly practical point of view, and thus 
making it more interesting than a study of law-books, which, as 
you all know, are notoriously dry reading, I hope so to present the 
matter that it will appeal directly to engineering students. 

In one sense this lecture is a sequel to that on "Specifications," 
and will be appreciated better by those who have read the latter; 
nevertheless, I shall endeavor to make the treatment of the new sub- 
ject complete in itself and independent of the preceding lecture. 
The general plan, however, is the same for both — viz., a dissertation 
concerning the theory or science of writing, followed by illustrations 
taken from actual practice. 

The dividing line between specifications and contracts is most 
difficult to draw, for in any particular case two engineers will rarely 
agree as to what clauses pertain properly to the specifications and 
what to the contract, of which the specifications form a part. Some 
engineers prefer to throw nearly everything into the specifications 
and thus keep the size of the contract proper as small as possible.^ 



1 Not so much to make the contract small, as to make it general and 
applicable to many cases or structures. 



SPECIFICATIONS AND CONTRACTS. ^ 61 

while others make the latter very extensive by including in it many 
clauses that are ordinarily found in the specifications. Again, 
others make a practice of repeating in the contract certain clauses 
that have already been covered in the specifications. In my opinion, 
the last-mentioned nlethod is open to criticism in that it is liable to 
result in conflicting clauses; nevertheless, it is quite possible that 
my practice has not invariably been entirely free from this objec- 
tionable feature — it is so hard to be always consistent; and again, 
one's methods are a matter of development and are not created per- 
fect at one essay. 

Before proceeding to the direct treatment of my subject I shall Dividing Line 
endeavor to make clear to you the method that I have adopted for 
locating the dividing line between specifications and contracts. I 
say "endeavor" advisedly, for I am not sure that I can always give 
a, satisfactory rule or reason for any particular division; because 
absolute consistency is an attribute that, strive as one will to attain 
it, lies ever just beyond reach.^ 

My preference is to throw as much of the matter as possible into Scope of Specifica- 
the specifications and reduce the size of the contract proper to a 
minimum, avoiding repetition of statement in the two parts of the 
work, but of necessity treating certain subjects in both parts, though 
from different points of view. There is no doubt about the proper 
place for most of the topics or headings, but in certain cases there 
are plausible reasons for locating them in either division. All 
•clauses that relate to methods of construction, qualities of materials, 
character of the work, rules limiting the functions and powers 
of the Contractor and defining the authority of the Engineer, 
directions to bidders, and transportation of men and materials 
unquestionably belong to the specifications; but such clauses 
as those relative to adherence to specifications, alteration of plans, 
damages, extras, payments, responsibility for accidents, the spirit of 
the specifications, strictness of inspection, liquidated damages, scope 
of the contract, and time of completion might perhaps be properly 
inserted in either division. My custom, however, is to include all 
of these clauses and others of like character and scope in the 
specifications. 

Nine out of ten of the contracts that an engineer has to prepare ^^°P® °^ Contract 
are in connection with construction, and an intelligent specialist 



^ It is considered excellent practice to limit the general covenants and 
obligations to the contract and to include in the specifications matters which 
are special to the particular structure in hand, and which are matters of 
■engineering and architectural construction. 



62 SPECIFICATIONS AND CONTRACTS. 

soon learns how to prepare satisfactory specifications and contracts 
for all ordinary kinds of work; but this style of contract is by no 
means the only type with which an engineer is concerned, for he is 
sometimes, called upon to draft agreements between promoters of 
enterprises and capitalists, between himself and promoters of enter- 
prises, between two engineers, between two contractors, or between 
a surety company and a contractor. Some of these unusual types 
are exceedingly difficult to draft properly, as, owing to their varying 
conditions, they cannot be systematized. It is mainly with them, 
therefore, that this lecture on contract writing is concerned, because, 
for construction in general it is practicable to evolve a form which,, 
when correctly filled out, will apply to any ordinary case. 

Contract Writing a The importance of drafting contracts properly cannot well be 

overestimated. An incorrectly drawn agreement is almost certain 
to involve serious trouble and often pecuniary loss to an innocent 
party; hence it behooves engineers to study thoroughly and funda- 
mentally the science or art of contract writing. 

Whether it be really a science or an art is a mooted point; but, 
in my opinion, the writing of proper specifications and contracts is 
certainly worthy to be termed a science. 

Desiderata Before one can draft a contract, he must have clearly in mind a 

full and well-defined idea of all the conditions and desiderata, and 
he should epitomize these systematically before beginning to write. 
It is advisable to keep constantly in view the possibility that each 
party to the contract may be unscrupulous and willing to take every 
possible advantage of every weakness which the contract may con- 
tain and which will tend to his own profit — honor and integrity to 
the contrary notwithstanding. Failure to do this will often result, 
in some ambiguity that will cause rank injustice to one of the par- 
ties to the agreement. It is difficult for an engineer to recognize this 
weakness of human nature and to bear it steadily in mind when 
writing contracts, because the training and the work of engineers 
tend to develop in them to an eminent degree the principles of abso- 
lute honesty; consequently, it comes hard for them to be forced to 
make a practice of doubting the integrity of their business associates. 
To mistrust the motives of one's fellow-men is disagreeable but 
essential, if the writer of specifications and contracts is to protect 
himself or his clients from loss and fraud. 

Misplaced Confidence Concerning this matter I speak from sad experience, for in my 

business career I have at times suffered severely from the ill-effects 
of a too-trusting reliance upon the honorable intentions of those with 



SPECIFICATIONS AND CONTRACTS. 63 

whom I have done business; and, while this unfortunate experience, 
I am happy to say, has not caused me to mistrust the goodness of 
human nature in general, it has taught me the necessity for exercis- 
ing the utmost caution in drawing contracts, so as not to put tempta- 
tion in the way of either party by inserting a single clause of which 
he could take advantage by compelling the other party to do some- 
thing that was not contemplated when the agreement was made. 
Occasionally it happens that after a contract is executed, one of the 
parties finds a flaw that will give him an improper advantage; 
and it is only a strictly just and upright man who will refuse to 
avail himself of such a weakness in the document. 

The essential elements of any contract, according to Mr. John Essential Elements 
Cassan Wait, the noted authority on "Engineering and Architectural 
Jurisprudence," are as follows: 

"1st. Two parties with capacity to contract. 

"2d. A lawful consideration — a something in exchange for its 
legal equivalent, a quid pro quo. 

"3d. A lawful subject-matter, whether it be a promise, an act, 
or a material object. 

"4 th. Mutuality — a mutual assent, a mutual understanding, a 
meeting of the minds of the parties." 

Without these four elements no contract is binding in law. 

The essentials of a well-drawn contract that comes within the Engineering Essen- 
tials 
province of the engineer, however, are as follows: 

1st. A proper and customary form. 

2d. A full and correct description of all parties to the agree- 
ment. 

3d. A thorough and complete preamble. 

4th. A statement of when and under what conditions the con- 
tract is to become operative. 

5th. The limit, if any, for duration of contract. 

6th. An exhaustive statement of what each party to the con- 
tract binds himself, his executors, administrators, successors, or 
assigns to do or to refrain from doing. 

7th. A clearly defined enunciation of the consideration which 
«ach party is to receive; this is the essential raison d'etre of the 
instrunient. 

8th. The forecasting of all possible eventualities that would 
materially affect the agreement, and a full statement of everything 
that is to be done in case of each eventuality. 



64 



SPECIFICATIONS AND CONTRACTS. 



Contract Forms 



Introduction 



9th. Penalties for failure to comply with the various terms of 
the agreement. 

10th. Provision for possible cancellation of contract. 

11th. Provision for settlement of all business relations covered 
by the contract or resulting therefrom in case of cancellation, taking: 
into account all possible important eventualities. 

12th. Mention of the place where the agreement is drawn or of 
the place where it is to be put in force, so as to show the state under 
the laws of which the validity of the contract is to be determined^ 
should suit be necessary to enforce it. 

13th. Methods of payments, if any are to be made. 

14th. Provision for extra compensation and the limitations 
connected therewith. 

15th. Provision for possible changes in contract. 

16th. Provision for transfer of the contract or for subletting. 

17th. Provision for settlement of disputes. 

18th. Provision for satisfactory and sufficient bond, if any" 
be needed. 

19th. Provision for defense of lawsuits, if such provision be 
necessary. 

20th. Definition of names used in contract, such as "Engineer," 
"Company," "Contractor," or "Trustee." 

21st. Dating of contract. 

22d. Proper signatures with the necessary seals, if the latter be 
required. 

23d. Witnesses to the signatures, or execution before a notary 
public. 

I shall now take up and discuss in the order of their enumera- 
tion each of these essentials to a properly drawn contract. 

1st. The styles of opening clause for contracts are both numer- 
ous and varied, and it is difficult to say which is the best. Each, 
writer naturally will have one favorite style and will adhere to it 
whenever possible. Mine for many years has been as follows: (In 
order to make it more readable I shall fill out the spaces with some 
assumed names and a date.) 

"MEMORANDUM OF AGREEMENT, made and signed this 
eleventh day of February, 1905, by and between the Kansas Citjr 
Bridge and Terminal Railway Company, a corporation of the State 
of Missouri, the party of the first part, and sometimes termed in this- 
agreement and in the specifications the "Company," and The Western 
Contracting Company, a corporation of the State of Kansas, the 



SPECIFICATIONS AND CONTRACTS. 65 

party of the second part, and sometimes termed in this agreement 
and in the specifications the 'Contractor.' " 

Wait recommends the two following forms of introduction: 

"This agreement, made and entered into this eleventh day of 
February, in the year of 1905, by and between, etc., etc." 

"Articles of Agreement, made and entered into between The 
Kansas City Bridge and Terminal Railway Company, a corporation, 
etc., etc., and The Western Contracting Company, a corporation, 
etc., etc., on this eleventh day of February, 1905." 

After the introductory clause comes the preamble, and imme- Attestation 
diately after it I insert in capital letters "NOW THIS AGREEMENT 
WITNESSETH," and follow with consecutively numbered clauses 
that embody all the terms and conditions of the contract, then close 
with provision for the signatures and seals of the contracting parties 
and witnesses to these signatures. 

2d. In describing the various parties to an agreement care Pai-ties Described 
should be taken to make the description full and convincing in 
order that there shall be no possible mistake concerning the identity 
of each party. This is effected in the case of an Individual by 
stating his occupation and place of residence, in the case of a firm 
by naming it fully, mentioning its place of business, and describing 
the kind of partnership, and in case of a company by giving its 
legal title and the name of the state or country where it was incor- 
porated. In case of a partnership it is sometimes well to specify 
whether it is general or special in respect to the work covered in 
the contract. 

While most contracts are drawn between but two parties, it Number of Parties 
sometimes occurs that an agreement will involve three or even more. 
Such a contract is much more complicated and difficult to draft than 
one between two parties only. 

Each party should be designated in the instrument by his special Persona Descriptio 
number, as the party of the first part or the party of the second part; 
and in addition it is well to give each another designation, such as 
"Contractor," "Company," "Owner," "Engineer," "Promoter," 
"Board," "City," "Incorporator," or "Trustee" in order to avoid the 
use of too many words throughout the document, as would be the 
case were he always referred to as the party of the first or second 
part. In order to make assurance doubly sure it is well in some 
cases to define the terms "Contractor," "Company," "Engineer," 
"Promoter," etc., at the end as well as at the beginning of the docu- 
ment. In any case these explanatory clauses should be placed at 



66 



SPECIFICATIONS AND CONTRACTS. 



Precedence 



Authority 



Ultra Vires 



Membership Organi- 
zation 



the beginning or the end of the specifications, because the latter are 
often used without the contract being attached. 

There is no strict rule as to the order in which the several 
parties shall be placed, but it is customary to make the one who 
pays the money the party of the first part. In case of employer and 
employee the employer should come first. In other cases it is a 
good rule to put the most important party first and the others as 
nearly as may be in the order of the importance of their relation to 
the enterprise or object matter of the agreement. 

There is a consideration of primary importance in contract 
writing that is sometimes overlooked — viz., whether the parties to 
the agreement are legally entitled to enter into contract. For 
instance, in the case of a company, the president or general manager, 
or perhaps either, can sometimes legally contract in the company's 
name, but sometimes he cannot, in which case, if haste be essential, it 
would be proper to have him enter into and sign the contract and 
afterward have it formally approved at a meeting of the board of 
directors. A properly certified copy of the board's approval should 
subsequently be attached to the contract. Access to its charter and 
by-laws is generally necessary to determine who has authority to 
enter into and sign contracts for a company. 

In contracting no corporation can exceed the limit of its powers 
as given by its charter. If it attempts to do so, its act will be ultra 
vires and without effect; consequently it behooves one in writing 
a contract with a corporation first to study well its charter, articles 
of incorporation, and by-laws. 

Contracting with unincorporated organizations as parties, such 
as associations, clubs, societies, or congregations, is a precarious 
business; nevertheless, it often has to be done. In order to insure 
the payment of money obligations by such parties a sufficient sum 
should be deposited in advance in the hands of a reputable trustee 
with instructions to pay it to the proper party or parties as soon as 
the obligations covered in the contract have been met; otherwise 
the other contracting party is liable to lose his entire consideration, 
because it is very difficult to hold legally an organization that has 
no legal existence, even if all the members thereof be individually 
liable. Here again I speak from sad experience, for at the outset of 
my consulting practice I lost what I considered then a large fee by 
dealing with a committee of public-spirited citizens, who were not 
honest enough to pay their Just debts after the proposed enterprise 
had failed. Even the law did not enable me to collect the bill, as 



SPECIFICATIONS AND CONTRACTS. 67 

my lawyers did not present the case to the court in the proper 
manner. 

Again, any person under twenty-one years of age, termed in law Infants 
an infant, who enters into a contract, has the privilege of repudiating 
it after arriving at the age of maturity, in case that it does not 
redound to his advantage; consequently it behooves the writer of a 
contract to make sure in all doubtful cases that the contracting 
parties are of age. In engineering contracts, however, this ques- 
tion is seldom likely to arise, because very young men are not often 
concerned in a prominent way with important enterprises. 

Similarly, imbeciles, inebriates, and lunatics are incompetent, Parties Incompetent 
and contracts made by them are legally voidable at their option. 
While it is highly improbable that either an imbecile or a lunatic 
would ever be made a party to an engineering contract, it is not 
impossible that a man chronically addicted to the overuse of liquor 
miight b8 so concerned. Such a man might plead that he was under 
the influence of drink when he signed the document and thus possibly 
effect his release from its obligations; consequently the writer of 
an engineering contract should assure himself of the temperate 
character or at least of the sober condition of the parties thereto. 

A married woman in some states cannot contract, sue, or be Married Woman 
sued in her own name. While it is uncommon for women to be 
engaged in enterprises involving engineering, it is by no means 
impossible, as I have learned from a hard lesson; for in the case of 
a contract for the engineering of a large and novel enterprise that 
I entered into with a certain man, it transpired that he was acting 
as agent for a married woman. Before our work was finished the 
man died, and the woman gave us notice in writing that she would 
assume his share of the contract, and instructed us to finish our 
work. This we did, and she paid us one-half of our total fee; but 
before the date specified in the contract for the payment of the 
second half, the bottom dropped out of the scheme, and the lady then 
refused to make any further payment. She did not plead her mar- 
ried state as a justification for her refusal, but we knew what we 
might expect in a legal contest over the question, consequently we 
entered the balance on the wrong side of our ledger in the "Profit 
and Loss" account. 

In case of war a contract entered into between parties who ^^^ 
are subjects or citizens of the conflicting countries is illegal, and if 
war be declared subsequent to the signing of the contract, its obli- 
gations cannot be enforced by law until after the war has ceased. 



68 



SPECIFICATIONS AND CONTRACTS. 



Agency 



Oovernment as 
Party 



Execution 



Preamble 



As engineers are often interested in projects in foreign countries, 
this is a matter tliat needs to be borne in mind when preparing the 
contracts for such enterprises. 

When a contract is entered into by an agent, care should be 
taken to make this relationship both clear and legal in the docu- 
ment by stating the name of the owner or corporation and following 
it with the words "acting by and through Mr. X, Agent, Attorney^ 
Engineer, President, or Treasurer (as the case may be), by virtue 
of the authority vested in him through power of attorney of the 

(here name the individual or company) dated the day of 

19 — , a copy of which is hereto annexed," or in some similar 

and equally explicit manner. In this way the name of the real prin-^ 
cipal is made certain, the authority of the agent is preserved, and 
the possible liability of the agent as the principal is averted. It 
must be remembered that no claims or obligations against a principal 
are created by a contract entered into by an agent who acts without 
proper authority, unless the contract be afterward confirmed directly 
or indirectly by the principal. 

Much engineering work is being done and is to be done in the 
future by contract with the United States Government. In making^ 
such contracts it is important to note that although the Government 
may enter suit on its contracts for their enforcement, it cannot,, 
without its own consent, be sued for non-compliance therewith. 
Instances are not unknown of repudiation of contracts by govern- 
ments. Furthermore, public officers cannot be held personally" 
liable for contracts signed by them in their official capacity. 

The names of the parties in the body of a contract should cor- 
respond exactly with the signatures and seals at the end, for a 
variation might prove fatal to the validity of the document. 

3d. The preamble is a most important portion of any contract. 
It should explain fully all the whys and wherefores of the agree- 
ment and its raison d'€tre. A thorough explanation of these would 
often render clear the intent of a clause in the body of the instru- 
ment that is otherwise ambiguous. 

Once more I am speaking from experience, for in an impor- 
tant but hurriedly prepared contract one of the clauses was not 
drawn with sufficient clearness, and, in consequence, one of the 
parties to the agreement tried to take an unfair advantage of it. 
Had the preamble explained carefully and in detail the ultimate 
object of the contract and the various steps necessary for its accom- 



SPECIFICATIONS AND CONTRACTS. 69 

plishment, the said party would not have been able to make the 
claim he did. 

You will be better able to judge of the importance of the pre- 
amble and to understand its scope after hearing read the specimen 
contracts that are to conclude this lecture. 

4th. Every contract should contain a statement of when or conditions Precedent 
under what conditions it is to become operative. The date may be 
some particular day of month and year or immediately after, or 
some definite time subsequent to, some act or occurrence, such, for 
instance, as the giving of written notice, or the deposit of a certain 
amount of money in a certain place, or the completion of a certain 
piece of work, or the arrival of a railroad at a certain point. What- 
ever the "condition precedent" may be, it should be made clear in 
the document beyond the peradventure of a doubt. 

5th. Too often in contracts nothing is said concerning the Duration 

duration of the agreement or of how it is to be drawn to a close. 

In some cases it would be impracticable thus to limit the life of the 

contract; but in others it is not only practicable, but also advisable, 

and sometimes it is imperative, especially where a bond for proper 

completion of work is involved. 

6th. The statement of what each party to the contract binds Legal Representa. 

tives 
himself, his executors, administrators, successors, or assigns, as 

the case may be, to do or to refrain from doing, should be thorough 
and complete in every detail. The importance of this is self- 
evident, nevertheless it is a point that is not always given proper 
attention in contract writing. 

In all contracts between corporations or between a corporation 
and an individual, the promises to perform should be made binding 
upon the successors or assigns of each corporation, although it is 
probable that the law would enforce this even if the stipulation 
were omitted. 

In contracts where an individual is a party to the agreement it Contracts for Per- 
sonal Service 
is best to bind not only himself, but also his executors or assigns, 

unless, perchance, the obligation be of such a nature as to be non- 
transferable, as for instance, the performance of personal duties 
or services -of an expert nature or involving special skill. Thus 
an engineer's services are not transferable, unless some special 
provision be made and agreed to by both parties that, in case of his 
death or inability for good and sufficient reason to finish his work, 
his contract is to be assumed by some other engineer, either named 
or to be determined afterward in some specific way. But the death 



70 



SPECIFICATIONS AND CONTRACTS. 



Consideration 



Consideration 
equate 



Inad- 



Eventualities 




of one member of a firm of engineers will not cancel an agreement; 
for as long as one of the original members of the firm remains in 
charge the contract will hold. In other words, it would require the 
death or incapacity of all the original members of the firm to 
abrogate the contract, unless special provision to the contrary exist 
in the written agreement. 

Construction contracts are generally assignable, unless they 
contain provision to the contrary. 

7th. The consideration which each party to an agreement is 
to give and is to receive should be clearly and fully stated in the 
document, otherwise unsealed contracts are liable to be held value- 
less and void in law. Moreover, the consideration must be real, 
substantial, and adeiuate. Some lawyers make a practice in many 
cases of specifying a consideration of one dollar, and they even try 
to pass that dollar around among the several parties to the agree- 
ment by having each party make nominally that payment to each 
of the other parties so as to show that each receives a valuable (?) 
consideration. In my opinion, such a practice is mere humbug and 
unworthy of adoption by any man pretending to scientific attain- 
ments in his profession, no matter whether that profession be law 
or engineering. Its adoption, it seems to me, is prima facie evidence^^ 
of weakness in the document and a confession by its writer that he \ 
has failed to make evident the true consideration that each party is 
to receive and the real reason for each party's entering into the 
agreement. 

There may be some excuse for passing the dollar in case of a 
parent deeding property to his child, where the true consideration 
is love and affection; but a dollar does not constitute a real con- 
sideration — it would be insufficient usually to pay the cost of type- 
writing the document; hence its employment is a fiction and a farce. 

8th. No portion of the work of contract writing requires greater 
experience and ability than the forecasting of all possible eventuali- 
ties that would materially affect the agreement and the proper pro- 
vision for what is to be done in the case of each eventuality. All 
contracts are more or less faulty in this particular, for it would 
require omniscience to forecast all future happenings; nevertheless, 
in preparing an important contract one should endeavor to foresee 
and provide for all possibilities and probabilities. The lawyer or 
engineer who makes a practice of giving this important matter full 
consideration in every contract that he writes will soon find himself 
In demand by capitalists to aid them in making their investments 



/ 



/ 

X 




V . 




SPECIFICATIONS AND CONTRACTS. 71 

and in consummating their enterprises. The succeeding examples 
of contracts will illustrate what I mean by the forecasting of eventu- 
alities and providing for them. 

9th. The matter of penalties is one that has to be handled with Penalties 
gloves, for the law is very jealous of its rights and prerogatives, and 
deems that it alone is authorized to specify and enforce a penalty, 
which it interprets as a punishment for failure to perform or comply 
with the terms of an agreement. On this account it is better not to 
use the term "penalty" in any contract, but to employ instead that 
of "liquidated damages." In my practice I have a clause in con- 
struction specifications that reads as follows: 

"For each day of delay beyond the date set in the contract for 
completing the entire work herein outlined, all in accordance with 
the plans, specifications, and directions of the Engineer, the Com- 
pany shall withhold permanently from the Contractor's total com- 
pensation the sum of dollars; and the amount thus with- 
held shall not be considered as a penalty, but as liquidated damages, 
fixed and agreed to in advance by the contracting parties as a proper 
compensation to the Company for the loss caused it by such delay." 

Liquidated damages are but seldom enforced, owing mainly to Liquidated Damages 
the characteristic good nature of engineers,^ for they object to taking 
advantage of a contractor who has worked faithfully but has been 
unfortunate. Again, the fact that the sympathy of jurors is gener- 
ally with the workingman and against corporations is a reason why 
disputes involving the retention of money to compensate for delays 
are generally settled out of court. 

10th and 11th. In most contracts for construction and in Abrogation or Can- 
cellation 

some other types of contract there is no need to provide for a 
possible abrogation of the agreement, because the completion of 
the work involved is a natural cancellation; but in some other types, 
such, for instance, as partnership* contracts that continue indefi- 
nitely, full detailed provision should be made for annulment at any 
time. Great care should be exercised to describe fully how a" 
current business matters are to be closed and what compensation is 
to be paid to the other party or parties by the party who desires 
the said cancellation. To do this in a satisfactory manner will 
require business knowledge and ability of the highest order. 

12th. It is quite important in many contracts to state where Lex Loci 
the instrument was executed and where it is to be put in force, 
notwithstanding the fact that the residence of each party in case 



1 And the aversion of courts and juries to their enforcement. 






72 



SPECIFICATIONS AND CONTRACTS. 



Payments 



Contracts for Pro- 
fessional Service 



Extras to be Ordered 
in Writing. 



Alterations 



of individuals or the state of organization in case of corporations 
has been described in the introductory clause of the document. The 
laws governing a contract may be determined by the place where 
the contract was made or by that in which it is performed. Wait 
treats this question very thoroughly on pages 49 to 51 of his 
Engineering and Architectural Jurisprudence. 

13th. Methods of making payments under construction con- 
tracts are generally covered in the specifications, where, in my 
opinion, they properly belong, although I have on several occasions 
been adversely criticized for not putting a payment clause in the 
contract proper. In all other types of contract in which payments 
of money are involved, full provision should be arranged for the 
exact manner in which all payments, both partial and final, are to 
be made. This remark applies with special force to contracts 
involving engineering fees; for in these, if payments on account are 
not arranged for, there is a chance that the engineers will receive 
no compensation at all until after the completion of their work, and 
this might be delayed for an indefinite period. Our usual practice 
is to ask one-half of our fee upon the completion of the plans and 
specifications and the other half in monthly payments proportionate 
to the amount of contract work done on the construction, so that 
when the latter is finished we shall have been paid in full. We 
have learned to provide also that we are to be compensated properly 
for all extra expense to us due to failure to complete the work in 
the time specified. It has cost us many thousands of dollars to 
learn this lesson, consequently the hint that I am giving you ought 
to be valuable. 

14th. In construction contracts the subject of extra payments 
also belongs in the specifications, although in many cases it is 
covered in the contract proper. Our standard clause for this item 
reads thus: 

"No extras will be allowed, unless they be ordered in writing 
by the Engineer. For extras so allowed the Contractor will be paid 
the actual cost to him, plus ten (10) per cent, for profit. Satisfac- 
tory vouchers will be required from the Contractor for all extra 
labor and materials." 

15th. It is a wise precaution to provide for making changes in 
every important contract. Our standard clause for this item is as 
follows : 

"No change or alteration shall be made in the terms or condi- 
tions of this agreement without the consent of both parties hereto 



SPECIFICATIONS AND CONTRACTS. 73 

In writing; and no claim shall be made or considered for any extra 
work, unless the same shall be authorized and directed in writing 
by the engineer." 

16th. In construction contracts there should always be a clause Subletting Forbid- 
den 
to govern assigning the contract and subletting the work. Our 

standard clause for this reads thus: 

"The party of the second part hereby agrees that it will not 

assign or sublet the work covered in this contract, or any portion 

of it, without the written consent of the party of the first part, but 

ivill keep the same within its control." 

17th. In respect to provision for settlement of disputes Engineer's Decision 
•engineers are somewhat at variance. Some think that the engineer 
should be the sole arbiter, but I do not believe that such an arrange- 
ment is just, savoring, as it does, altogether too much of autocratic 
rule. I am a firm believer in arbitration for the settlement of all 
•disputes on important matters, and it has for many years been my 
custom to provide in all construction contracts for such a method 
of settlement. Our standard clause for this matter is as follows: 

"The decision of the Engineer shall control as to the interpreta- 
tion of drawings and specifications during the execution of the work 
Tinder them; but if either party shall consider itself aggrieved by 
any decision, it may require the dispute to be finally and conclu- Arbitration 
sively settled by the decision of three arbitrators, the first to be 
appointed by the party of the first part, the second by the party of 
the second part, and the third by the two arbitrators thus chosen. 
In case that the two first chosen fail to agree upon a third, the latter 

shall be appointed by 

By the decision of these three arbitrators or that of a majority of 
them, both parties to this agreement shall be finally bound." The 
person chosen to appoint the third arbitrator should be some promi- 
nent official, such as the judge of a certain court, the mayor of a 
certain city, or the governor of a certain state. 

It is seldom that an arbitration clause in a contract is utilized, 
l)ecause engineers as a rule are reasonable. Only once in my thirty 
years of practice has it been appealed to. The subject of dispute in 
that case was some lumber very properly rejected by my inspector 
as unfit for use. Unfortunately, the result of the arbitration was 
adverse to my decision, owing to a too friendly understa^^^-^ 
between the officers of the Company and the Contractor. >\ jC^^^-^^^-r 

Notwithstanding the fact that the contract reads that "By the Appeal from Award 
decision of these three arbitrators, or by that of a majority of them, /llS 



74 SPECIFICATIONS AND CONTRACTS. 

both parties to this agreement shall be finally bound," the law has 
decided that the losing party has still a right to appeal to the courts; 
consequently, this clause of our form of contract is not binding. 
Although I have known this for years, I have made no change in 
the clause, for the reason that at least nine contractors out of ten. 
prefer arbitration to the delays, uncertainties, and expense that ar© 
inseparable from legal litigation, and I have never heard of a case 
in which the loser by arbitration appealed to the courts. It would 
simplify matters if immediately after an arbitration is agreed upon 
each party concerned were to give to the other a bond guaranteeing 
that he will abide by the decision of the arbitrators. 

Bonds or Surety 18th. The bond question is a prominent feature of any construc- 

tion contract and occasionally is important in other types of contract. 
My firm has finally come to the conclusion that a good Surety Com- 
pany bond is the only kind that we shall either ask for or accept in 
future, for no other kind is so satisfactory to the Company or is 
obtained with so little difficulty by the Contractor. All personal 
bonds are obtained by favor and they are generally very unsatisfac- 
tory, for the solvency of the sureties is difficult to prove, and to 
enforce payment is still more difficult. Many years ago I had my 
first and last experience with a personal bond. It was when building 
my residence that I accepted from the contractor a joint bond signed 
by three or four persons, among them a good friend of mine. This 
bond was accepted by my lawyers; nevertheless, later on when the 
contractor threw up the work I found that the only responsible man 
on the paper was my friend. As I could not press him, I waived 
the matter, and in consequence was materially out of pocket. 

Sureties Released There is considerable humbug in connection with sureties ta 

agreements, for a slight change in contract, plans, or specifications 
is often sufficient to render the bond null and void. If any one 
doubt this statement, let him read what Wait says on pages 13 to 17 
of his Engineering and Architectural Jurisprudence. In my opinion 
the only way to protect the Company is to insist upon having a 
Dond that will permit of all necessary changes in plans and specifica- 
tions without releasing the surety, and even such a bond might be 
voided by the law's declaring it illegal because it departs from 
current practice.^ 

Law and Equity There are some very strange things about the law. On two or 

three occasions I have been provoked to make the statement that 
"laws are made to protect rogues against honest men," and truly it 



^ Decisions. 



SPECIFICATIONS AND CONTRACTS. 75 

does seem sometimes as if such were the case. Law and equity are 
two entirely different things. The less that engineers have to do 
with the former and the more they employ the latter, the better it 
will be for all concerned. 

In adjusting disputes I am a firm believer in the principle of Compromised Claims 
compromise, or, to put it in more homely words, in that of "give and 
take." It is nearly always practicable to bring two disputing parties 
to terms by suggesting a reasonable compromise. 

19th. If, according to a contract, the Contractor is to indemnify indemnity for Negli- 
the Company against all liability or damages on account of acci- 
dents, it is only fair that the former should be given the privilege 
of assuming the sole defense of all lawsuits arising from such claims. 
You will see later how our standard form of contract covers this 
point. 

20th. The manner of defining by special clauses names used 
in the contract, such as "Engineer," "Company," etc., will be seen 
later in the various appended examples of contracts. 

21st. A contract can be dated either in the opening or in the Contract Date 
final clause, or in both. In the latter case it is better not to repeat 
the date, but to insert the sentence "Dated the day, month, and year 
first herein written." 

22d. It is important that the signatures coincide exactly with Signature and Seal ' 
the names of the parties as given in the opening clause of the agree- 
ment, and that proper seals are attached when they are needed. If a 
party to a contract be a corporation, its corporate seal should be 
used, but in the case of an individual almost any kind of seal will 
suffice — either a wafer or the word "seal" with a scroll drawn 
around it with pen and ink being commonly used. In the latter 
case it is better to write in small letters the initials of the signer 
over the word "seal." 

Let me here call your attention to an important and funda- Specialties 
mental difference between contracts with and without seals. The 
former do not need to have a consideration mentioned in them in 
order to make them valid, while the latter do require such mention. 
In former times there was far greater difference in the importance 
of sealed and parole (or unsealed) contracts than there is to-day; 
for then a sealed contract could not be modified without taking many 
formal legal steps, while to-day it can be changed quite readily by a 
short supplementary contract, provided there be a proper considera- 
tion mentioned therein for the making of the change. 

23d. Where the party to a contract is a corporation, the proper Witnesses 
witness to the Company's signature is the Secretary of the Company, 



76 



SPECIFICATIONS AND CONTRACTS. 



Acknowledgments 



Contract Form 



Introduction and 
iParties 



who should use its corporate seal for attesting the document, but 
in case the party is an individual any witness will suffice. 

The best possible witness to signatures is a properly authorized 
notary public, because if any doubt be expressed concerning the 
authenticity of the said signatures, all that is necessary is to prove 
the notary's authority, which is a matter of public record, while 
for all other witnesses it is obligatory to search for them and either 
produce them in person or prove that it is impracticable to do so on 
account of death or departure from the country; and in this case it 
is generally required that there be brought forward reliable parties 
who will swear that the witnesses' signatures are authentic. 

In the hope that it may prove useful to you and to the readers 
of the volume that later on will contain this lecture, I herewith 
reproduce the standard "Form for Contract" of Waddell & Harring- 
ton for appending to construction specifications. 

MEMORANDUM OF AGREEMENT, Made and signed this 

day of 19 , by and between the 

, the party of the first 

part, and sometimes termed in this agreement and in the specifica- 
tions the "Company," and 



Preambles 



the party of the second part, and sometimes termed in this agree- 
ment and in the specifications the "Contractor." 

WHEREAS, 



Undertaking and 
Consideration 



NOW THIS AGREEMENT WITNESSETH: 

First. — The party of the second part, for and in consideration 
of certain payments to be made to it as hereinafter specified, will 



Time of Essence 



all in accordance with the plans and specifications hereunto 
annexed and made a part hereof, and will fully finish and complete 

the same by , unless, in 

the opinion of the Engineer, the party of the second part be delayed 
or prevented by circumstances that are absolutely beyond its 
control. 

Second. — The party of the second part shall begin the work of 
construction as soon as practicable after the signing of the con- 
tract, and shall push the same to completion as rapidly as possible 
and within the time limit or limits set in the accompanying 
specifications. 



SPECIFICATIONS AND CONTRACTS. 77 

Third. — All important dimensions and characteristics of the 
structures are fully described in the accompanying drawings and 
specifications, which form a part of this contract. 

Fourth. — In consideration of the performance by the party of I'ndertaking 
the second part of its covenants and agreements, as hereinbefore 
set forth, the party of the first part hereby covenants and agrees to 
pay to the party of the second part as follows: 



In case that there be any other materials furnished by the ^'^'ce of Extras 
Contractor that are not included in this list, they shall be paid for 
on the basis of actual cost to the Contractor plus ten (10) per cent, 
for his profit. 

It is understood that no payments, either partial or final, are 
to be made for any material which is to be used for falsework or 
plant, but only for such material as is left permanently in the 
finished construction. 

Fifth. — The schedule prices to be adopted in making partial Schedule of Prices 
payments for all work as it progresses are to be as follows: 



Sixth.— All material paid for by the party of the first part Title to Materials 
shall be deemed to have been delivered to, and to have become 
the property of the said first party, but the party of the second 
part hereby agrees to store it and to become responsible for it 
■during the continuance of this agreement. If any of it be damaged, 
■destroyed, or lost from any cause, including, among others, floods, 
ivashouts, and fires, the Contractor shall repair or replace the same 
at his own expense to the satisfaction of the Engineer. 

Seventh.— In case the party of the first part, notwithstanding Waiver 
the failure of the party of the second part to complete its work 
within the time specified, shall permit the said second party to 
proceed, and continue, and complete the same, as if such time had 
not lapsed, such permission shall not be deemed a waiver in 
any respect, by the first party, of any forfeiture or liability for 
damages arising from such non-completion of said work within 
the time specified, and covered by the "Liquidated Damages" clause 
of the specifications; but such liability shall continue in full force 



78 



SPECIFICATIONS AND CONTRACTS. 



Written Order for 
Extras 



Delays 



Subletting 



Engineer's Decision 



Negligence, Indem- 
nity 



against the said second party, as if sucli permission had not 
been granted. 

Eighth. — No change or alteration shall be made in the terms or 
conditions of this agreement without the consent of both parties 
hereto in writing, and no claim shall be made or considered for any 
extra work unless the same shall be authorized and directed in 
writing by the Engineer. 

Ninth. — In the event of any delay in completing the work 
embraced in this contract, the party of the second part shall be 
entitled to no extra compensation on account of such delay, as it is 
hereby assumed that in submitting its tender it took its chances for 
the occurrence of such delay. If, however, in the opinion of the 
Engineer, the Contractor be delayed by any act of the Company 
to such an extent as to cause him serious hardship, such as a tem- 
porary cessation of the work, the Company shall allow the Contractor 
whatever compensation for such delay as may appear to the Engineer 
to be just and equitable. 

Tenth. — The party of the second part hereby agrees that it will 
not assign or sublet the work covered in this contract, or any portion 
of it, without the written consent of the party of the first part, but 
will keep the same within its control. 

Eleventh. — The decision of the Engineer shall control as to the 
Interpretation of drawings and specifications during the execution 
of the work under them; but if either party shall consider itself 
aggrieved by any decision, it may require the dispute to be finally 
and conclusively settled by the decision of the three arbitrators,, 
the first to be appointed by the party of the first part, the second 
by the party of the second part, and the third by the two 
arbitrators thus chosen. In case that the two first chosen fail to 

agree upon a third, the latter shall be appointed by 

By the decision of these 

three arbitrators, or by that of a majority of them, both parties to 
this agreement shall be finally bound. 

Twelfth. — As, according to the terms of the accompanying 
specifications, which form a part of this contract, the party of the 
second part is to indemnify the party of the first part against all 
liability or damages on account of accidents occasioned by the 
omission or negligence of itself, its agents, or its workmen during 
the continuance of this agreement, and against all claims for 
royalties on patents; it is hereby agreed that the party of the 
second part shall be promptly and duly notified in writing by the 



SPECIFICATIONS AND CONTRACTS. 79 

party of the first part of the bringing of any such suit or suits, 
and shall be given the privilege of assuming the sole defense 
thereof. The party of the second part is to pay all judgments 
recovered by reason of accidents or patents in any suit or suits 
against the party of the first part, including all legal costs, court 
expenses, and other like expenses. 

Thirteenth. — The Contractor further agrees to give to the Com- Bond 
pany a surety-company bond, satisfactory to the party of the first 

part in the sum of 

for the faithful performance of this contract and the specifications, 
and of all the terms and conditions therein contained, and for the 
prompt payment for all materials and labor used in the manufacture 
and construction of the structures, and to protect and save harmless 
the Company from claims on patents and from all damages to 
persons or property, caused by the negligence or claim of negligence 
of the Contractor, his agents, servants, or employees in doing the 
work, or in connection therewith, and from injury to or loss of 
materials paid for by the Company either partially or in full before 
the completion and acceptance of the construction or constructions. 

Fourteenth. — The word "Engineer" as used in this contract Parties Described 
refers to the Consulting Engineers of the 

or their duly authorized representative. 

IN WITNESS WHEREOF, the parties to this agreement have Execution 
hereunto set their hands and seals. 

Dated the day, month, and year first herein written. 

WITNESSED BY 



The ninth item of this form, as originally written without Extras and Delay 
qualification, has been severely criticized on more than one occasion 
because of alleged unfairness. I refer to the clause which reads: 
"In the event of any delay in completing the work embraced in this 
contract, the party of the second part shall be entitled to no extra 
compensation on account of such delay; as it is hereby assumed 
that in submitting its tender it took its chances for the occurrence 
of such delay." I admit the one-sidedness of this clause, and that 
if it were enforced to the letter by a narrow-minded or unfair 
engineer, it might effect a hardship upon the Contractor; neverthe- 



80 



SPECIFICATIONS AND CONTRACTS. 



Cost plus Percentage 



Example for Dis- 
cussion 



Parties 



less, as a matter of policy we still leave it in our construction con- 
tracts in order to prevent contractors from constantly making claims. 
for extras on account of trivial delays; but, if a delay were of such 
importance as to necessitate a partial or total shutting down of the 
work, we would certainly see that the Contractor is compensated 
for the extra expense to which he is put by stopping and restarting^ 
construction, for in our dealings with contractors we aim always to? 
act the part of "judge" and not that of partisan of the Company. 

Once in a while it becomes necessary for a Company to let 
work on the basis of actual cost, plus a percentage for profit, and 
in this case special care has to be taken to cover all possible details 
and eventualities in order to protect the Company from extortion: 
and needless expense. This manner of letting work is very 
favorable to the Contractor, but is troublesome and expensive for 
the Engineer and rather risky for the Company. Under certain 
conditions, however, it is the only way in which the work can be 
let at any reasonable figure, such conditions, for instance, as govern 
railroad or bridge building in a tropical country where fevers; 
are prevalent and where the conditions affecting the cost of con- 
struction are practically unknown. My firm has acted as engineers 
on such work, and, consequently, we have learned by experience- 
how contracts therefor should be prepared. The following is the 
type of contract that we would draft for such a case: 

Let us assume that there is a railroad being built in the 
tierra caliente of Mexico from Matamoras on the American border 
through or near Tampico and Vera Cruz to the border of Guatemala^ 
by an American company organized in West Virginia under tha 
name of the Mexican Gulf Coastline Railway Company, and that it 
desires to let to the Central Bridge Company of Kansas City, Mo., the 
contract for building the substructures of all bridges and all the 
culverts on the line and for erecting all the superstructures, the 
metal for which is to be furnished and delivered at the bridge sites 
by the Company. Let us assume also that the basis of the contract 
is that the Contractor is to be paid the actual cost to him of the 
entire work, plus fifteen (15) per cent, for profit. 

Under such conditions we would prepare specifications of our 
standard type, with possibly a few modifications, and would attach 
them to the following contract: 

MEMORANDUM OF AGREEMENT, Made and signed this four- 
teenth day of March, 1905, by and between the Mexican Gulf Coast- 
line Railway Company, a corporation of the State of West Virginia^ 



SPECIFICATIONS AND CONTRACTS. 81 

U. S. A., and having its principal business office in New York City, 
N. Y., the party of the first part, and sometimes termed in this 
agreement and in the specifications the "Company," and the Central 
Bridge Company, a corporation of the State of Missouri, U. S. A., 
and having headquarters at Kansas City, Mo., the party of the second 
part, and sometimes termed in this agreement and in the specifica- 
tions the "Contractor." 

WHEREAS, The party of the first part has already begun the Preamble 
construction of its road at several points along its line, which starts 
from the American border at Matamoras, Mexico, and parallels the 
Gulf coast, running near the cities of Tampico, Tuxpan, and Vera 
Cruz, and extending to the border of Guatemala, and 

WHEREAS, The party of the first part has already entered 
into contract with certain American firms for the manufacture of 
the metal-work for the superstructure of all the bridges required for 
its entire line, and 

WHEREAS, The party of the first part desires to let to some 
reliable American contractor the contract for building all the bridge 
piers, abutments, and culverts and for erecting all the superstruc- 
tures of bridges on the entire line of its road, and 

WHEREAS, The party of the second part makes a specialty of 
building the substructures and superstructures of bridges, and has 
had a wide experience in this line of construction, 
NOW THIS AGREEMENT WITNESSETH: 

First. — The party of the second part, for and in consideration Subject-Matter 
of certain payments to be made to it as hereinafter specified, will 
furnish all the materials for and construct complete all the bridge 
piers, abutments, and culverts, will erect and paint all the metal- 
work for the superstructures, and will furnish and put in place all 
the flooring for the bridges of the entire line of the said railway, all 
in accordance with the specifications hereunto annexed and made a 
part hereof, and with the plans and directions of the Engineer. 

Second. — The party of the second part shall commence the work Commencement 
of construction as soon after the signing of the contract as it is 
practicable to begin, starting at as many different points along the 
line of the road as the Engineer may direct, and shall push the same 
to completion as rapidly as possible. 

Third. — In consideration of the performance by the party of the ConsideratioiL 
second part of its covenants and agreements, as hereinbefore set 
forth, the party of the first part hereby covenants and agrees, for 
itself, its successors, and assigns, to pay to the party of the second 



82 



SPECIFICATIONS AND CONTRACTS. 



Cost to Include 



Plant 



Repairs 



Sickness and Travel- 
ing Expenses 



part for the furnishing and completion of the entire work the actual 
cash cost thereof, plus fifteen (15) per cent, for profit. 

In computing the cost of the work, there shall be included all 
items of materials, labor, and transportation of men, materials, and 
plant to and fro, but no allowance will be made for cost of plant or 
deterioration of same, or for the time or personal expenses (other 
than railway and Pullman fares) of the party of the second part, or 
for interest on moneys required to carry on the work. Accident 
insurance for employees, insurance against loss of materials or plant 
by fire or shipwreck, and all stamps for documents, and taxes of all 
kinds shall be considered items of legitimate expense, and shall be 
allowed for by the Engineer in the monthly estimates, as shall also 
the cost of housing the workmen, but not their sustenance. 

By the term "Plant" is meant all machinery and apparatus, new 
or second-hand, such as engines, dredges, diving apparatus, pile- 
drivers, wire rope used for tackle, blocks, forges, riveting apparatus, 
and blacksmith's tools that are of a permanent nature; but does not 
include such perishable materials as hemp rope, rubber hose, wheel- 
barrows, bolts, shovels, rubber boots, and all other tools and appa- 
ratus of a temporary nature. The decision of the Engineer shall 
control as to what is and what is not "Plant," and his decision shall 
be final. 

In respect to repairing plant and tools it is understood that all 
minor repairs that are done by the blacksmith and other employees 
of the Contractor are to be charged to the Company, as are also 
repairs during construction to the perishable parts of the plant and 
tools, such, for instance, as the timber for pile-drivers, the easily 
broken parts of riveting machinery, and pipes for boring outfit; but 
when the work of the Contractor is finished there will be no allow- 
ance made to him for the deterioration of his plant, nor will he be 
allowed to put it into thorough repair at the expense of the Company 
just before he completes the entire construction. When this com- 
pletion occurs all plant is to be the property of the Contractor, and 
all other apparatus of any value and all surplus materials are to be 
delivered to the Company as per the directions of the latter. But the 
Company reserves the right to purchase from the Contractor any of 
his plant at its actual value where it was bought less a proper allow- 
ance for depreciation; and the Engineer is to be the sole arbiter 
concerning the actual value of such plant in case that the Company 
and the Contractor fail to agree thereon. 

No sick or incapacitated employee shall be included on the 



SPECIFICATIONS AND CONTRACTS. 83 

Contractor's pay-roll without the written consent of the Engineer 
in each and every case. 

In respect to traveling expenses for employees, none shall be 
paid for the journey to the work until after the employee has been 
on the work for three (3) months; and no return expenses shall be 
allowed unless the employee has been discharged on account of no 
fault of his own, or until he has worked for the Company at least 
twelve (12) months. The traveling expenses allowed shall cover 
nothing but the railroad fare, except that in the case of the Con- 
tractors and their regularly salaried employees sleeping-car 
charges also shall be borne by the Company. 

The men's time spent in traveling from the United States to Travel 
their work is to be paid for in case they remain three (3) months 
or more continuously thereon; otherwise there will be no allowance 
for time spent in traveling. In no case will any workman be 
allowed compensation for the time spent in returning home. No 
■employee discharged for incompetency or misbehavior shall be 
allowed any return traveling expenses. 

If during the progress of the work, in the opinion of the Delay 
Engineer, its prosecution is being delayed by reason of these restric- 
tions concerning traveling expenses, the said restrictions may be 
modified or removed altogether by the mutual consent in writing of 
the two parties to this agreement, but in this manner only. 

No material is to be paid for until after it is delivered at site, 
unless the Company shall have had it in its possession for over 
thirty (30) days. 

Medical attendance and medicine at site will be paid for by the Medical Attendance 
Company; but no other medical or hospital expenses will be 
allowed, and the Company will bear all expenses connected with 
providing boiled and filtered or condensed water for drinking 
purposes. 

The commissariat department shall be considered as a thing Commissary 
apart from this contract. The Contractor shall manage it at his 
own expense, and shall charge enough for board to reimburse himself 
for the entire outlay connected therewith and to provide a profit 
not exceeding fifteen (15) per cent. At the same time the Company 
.shall insist that all employees be properly fed. The Company will 
make no charge for hauling commissariat supplies for the Contractor 
tover its own lines. In respect to the proper feeding of employees and 
a reasonable price for board, the Engineer shall be the sole arbiter 



84 



SPECIFICATIONS AND CONTRACTS. 



Exchange 



Tools and Supplies 



Accounts 



Workmen 



Preparation 



Vouchers 



in case that any dispute arise; and to this end the Contractor's com- 
missariat books shall always be open to his inspection. 

In order to keep the accounts straight, all payments made in. 
Mexico for labor and materials are to be in Mexican money, but the 
Engineer's monthly estimates are to be made in American money^ 
the rate of exchange to be adopted in effecting the reduction being^ 
that ruling in the City of Mexico on the date of the Engineer's, 
estimate. 

All bills for materials purchased outside of the Republic of 
Mexico, exceeding in amount five thousand dollars ($5,000,00) in 
gold, after being approved by the Engineer, shall be sent directly 
to the Company for payment; but the Contractor shall receive his. 
fifteen (15) per cent, profit upon them. 

Tools and other supplies may be furnished the Contractor by 
the material department of the Company, in which case the Con- 
tractor shall receive his fifteen (15) per cent, profit on the wholesale^ 
cost to the company of any materials upon which profit would be 
allowed, were they purchased elsewhere. 

The Contractor's books shall at all times be open to the inspec- 
tion of an expert accountant or accountants appointed by the Com- 
pany to investigate the accounts. 

The methods and times for payments shall be as described in 
the accompanying specifications, which form a part of this contract. 

Fourth. — The number of men to be sent from the United States 
to the work and their salaries or wages shall be subject to the 
approval of the Engineer, and he shall be satisfied as to their 
fitness before they are engaged. The number of men to be employed 
at each site shall also be subject to the Engineer's approval. He 
may order that the number be increased if, in his opinion, there 
are not enough, or that it be decreased, if it be too great for 
economic working. 

The Contractor shall purchase plant and materials in advance 
of the requirements, so as to have no idle men on the work. In case 
that he fails to do so, the Engineer shall have the right to prevent, 
the Company from loss of money because of such negligence, by 
making an equitable reduction in the monthly payments. 

The Engineer shall approve the purchase of all materials 
obtained outside of the Republic of Mexico and all important pur- 
chases of materials in same. The decision as to what purchases 
are important and what are not shall rest with the Engineer. 

All expense bills are to be properly vouchered in triplicate 



SPECIFICATIONS AND CONTRACTS. 85 

before being presented to the Engineer for his approval, and none 
shall be honored by the Company without his approval. The 
Engineer shall attach one set of vouchers to his monthly estimates, 
shall keep another set for his own records, and shall return the 
third to the Contractors. 

All pay-rolls are to be signed by the payees in the presence of Pay-Roiis 
the Engineer or one of his duly authorized representatives; and 
when they are complete they shall be copied in duplicate in type- 
writing and the copies shall be attested by a notary. One attested copy 
is to be attached to the monthly estimate, the other is to be retained 
by the Engineer, and the original is to remain the property of the 
Contractor. In case of employees unable to write, the paymaster 
shall attach to the pay-roll an affidavit certifying that all the men on 
the said pay-roll have been paid in full. 

The Company is not to be held liable for the failure of the Compliance with 

Laws 
Contractor to comply with any of the Mexican laws, especially those 

relating to books, accounts, and stamping of documents. 

Before the plant is shipped to the site of the work it must be 
approved in writing by the Engineer; and the Contractor shall 
provide in advance whatever plant the Engineer may deem necessary 
for a satisfactory prosecution of the work. 

Fifth.— All material paid for by the party of the first part shall f^^l^^f^ °' ^^■ 

be deemed to have been delivered to and to have become the 

property of the said first party; but the party of the second part 

hereby agrees to store it and to become responsible for it during 

the continuance of this agreement or until it has been placed in the 

work and accepted by the Engineer. If it be possible, all materials 

that are liable to injury by fire are to be insured to as near their full 

value at the place where stored as is practicable. In case that the insurance and Re- 
placing 

Contractor fail so to insure and any of the Company's property 
that is in his charge be injured or destroyed, it shall be repaired 
or replaced according to the directions of the Engineer, and the cost 
of such repairs or replacements shall be deducted by the 
Engineer from the Contractor's monthly estimates. In case it be 
impossible to insure the said materials, the Company will stand 
the cost of all loss by fire, provided that, in the opinion of the 
Engineer, the Contractor used due diligence in caring for the 
materials so injured or destroyed; but the Company shall in no way 
be liable for injury to or loss of materials by water, flood, theft, or 
maliciousness. 



86 



SPECIFICATIONS AND CONTRACTS. 



Subletting 



Defects 



Right of Way Sixth. — The party of the first part shall secure to the party of 

the second part the right to enter upon the places to be occupied by 
the structures and by the materials thereof during construction, 
free from cost, damage, or claim for damage of any kind whatever. 

Seventh. — No change or alteration shall be made in the terms 
or conditions of this agreement without the written consent of both 
parties thereto. 

Eighth. — The party of the second part hereby agrees that it will 
not assign or sublet the work covered in this contract, or any 
portion of it, without the previous written consent of the party of 
the first part, but will keep the same within its control. It will 
not be the policy of the Company to permit any subletting by the 
Contractor, because its principal object in letting this contract for 
cost, plus a percentage for profit, is to avail itself of the said Con- 
» tractor's experience, constructive skill, and ability to handle men 
and work. 

Ninth. — If the Engineer should find occasion to reject and 
insist upon the removal and replacement of any portion of the 
completed or partially completed work, and if, in his opinion, the 
Contractor is to blame for the defects, the cost of such removal and 
replacement is to be deducted by the Engineer from the Contractor's 
monthly estimates. 

Tenth. — If during construction it appear to the Engineer that 
the Contractor is not making proper progress on account of insuffi- 
cient plant, labor, materials, supplies, or energy, the Company shall 
give the Contractor notice in writing that it is not satisfied with the 
progress that is being made, explain its conception of the reasons 
for the delay, and suggest remedies therefor. Then, if, after the 
expiration of twenty (20) days, the Engineer reports that the 
Contractor has not taken the steps indicated by the Company as 
necessary for a satisfactory prosecution of the work or other steps 
which, in the opinion of the Engineer, will prove equally 
effective, the Company shall have the right, after giving the 
Contractor a further twenty (20) days' notice in writing, to under- 
take itself, either by administration, or by letting the contract 
to other parties, the completion of the said work which is thus being 
neglected. 
A.bandonment Under these circumstances the Company shall have the right 

to enter upon and take possession of the plant, tools, materials, and 
supplies of the said Contractor, or any part thereof; and in such 
case the Contractor shall be allowed a fair price for the use of all 



Progress 



SPECIFICATIONS AND CONTRACTS. 87 

plant returned, and compensation in full for any portion thereof 
used up or expended on the work. 

This provision shall apply to the entire work involved in the 
contract as well as to any portion of it, which means in effect that 
if, in the opinion of the Engineer, the Contractor does not make a 
practice of prosecuting his work with due diligence, thoroughness, or 
economy, the Company shall have the right to finish the said work ' 

in the manner provided in this clause of the agreement. 

Eleventh. — The decision of the Engineer shall control, etc., etc. Engineer's Decision 
(This clause is taken without change from Waddell & Hedrick's 
standard form previously quoted.) 

Twelfth. — (This also is from our standard form and covers the 
question of defense of lawsuits.) 

Thirteenth.— Whenever the reserve of ten (10) per cent, of the Retained Percentage 
monthly estimates, provided for in the contract, amounts to fifty 
thousand dollars ($50,000,00), the Company shall pay to the Con- 
tractor twenty-five thousand dollars ($25,000.00) on account, so that 
at all times after the first quarter-million dollars' worth of construc- 
tion is allowed for in the estimates, there shall be a reserve in the 
Company's hands varying in amount between twenty-five thousand 
($25,000) and fifty thousand ($50,000) dollars. 

Fourteenth. — The Contractor further agrees to give to the Com- Bond 
pany a good and satisfactory surety-company bond in the sum of 
fifty thousand dollars ($50,000.00) gold for the faithful performance 
of this contract according to the specifications, and for the prompt 
payment for all material and labor used on the work, and to protect 
and save harmless the Company from all damages to persons or 
property caused by the negligence, or claim of negligence, of the 
Contractor, or his agents, servants, or employees in doing the said 
work or in connection therewith, the form of the said bond to be 
satisfactory to the Company. In case, though, on account of the 
construction being done in a foreign country, there be experienced 
special difficulty or expense in obtaining a satisfactory surety-com- 
pany bond, the Contractor shall deposit with some Trust Company 
of New York City, to be named by the party of the first part, securi- 
ties to the full value of fifty thousand dollars ($50,000.00) as a 
guarantee instead of the aforesaid bond, which securities shall be 
satisfactory to the party of the first part. Whatever surety be 
decided upon, it shall continue in full force during the existence 
of this contract; and it shall not be waived or voided by any change 
in the plans, specifications, or amount of work involved, nor by any 



SPECIFICATIONS AND CONTRACTS. 



Arbitration 



Engineer 



Registry of Contract 



Abandonment 



Execution 



change in the contract itself that, in the opinion of three arbitrators 
(one appointed by the surety company, one by the party of the first 
part, and the third by the two arbitrators thus chosen), is not in 
equity a good and sufficient cause for the cancellation of the surety. 
All these conditions will have to be agreed to in advance by the pro- 
posed surety company, or else its surety will not be considered by 
the party of the first part; and in case of a cash or equivalent 
guarantee, the party depositing the same will have to agree to the 
said conditions. 

Fifteenth. — In case of any arbitration, if the two arbitrators 
first chosen refuse or fail to decide upon a third, the latter shall be 
appointed by the Mayor of New York City.^ 

Sixteenth. — The word "Engineer" as used in this contract refers 
to the Consulting Engineers of the Mexican Gulf Coastline Railway 
Company or their duly authorized representatives. 

Seventeenth. — Either party to this agreement shall at any time 
have the right to make this contract a public contract according to 
the laws of the Republic of Mexico. 

Eighteenth. — In case that at any time the Company decides to 
discontinue either temporarily or permanently the construction of its 
railroad or bridges, it shall have the right either to order the Con- 
tractor to cease operations until further notice or to cancel the 
contract. In the first case the Company shall pay all the expenses 
for closing down, storing, and taking care of the plant, and starting 
work again, also what, in the opinion of the Engineer, is a proper 
allowance for interest on cost of plant while it is out of use, together 
with fifteen (15) per cent, on these amounts for profit; and in the 
second case the Contractor is to be paid in full for all work done and 
materials furnished up to the date of cessation besides the entire 
cost of transporting the men and plant back to Kansas City, 
U. S. A., with the usual fifteen (15) per cent, added for profit. 

IN WITNESS WHEREOF, the parties to this agreement have, 
in the City of New York, hereunto set their hands and seals. 

Dated the day, month and year first herein written. 



Attest. 



Secretary of the Mexican Gulf Coast- 
line Railway Company. 

[Seal] 

Secretary of the Central Bridge Com- 
pany, 

[Seal] 



Mexican Gulf Coastline Railway 
Company. 



By 



By 



President. 



Central Bridge Company. 



President. 

1 The Mayor might decline to appoint, or his appointee might be a 
politician. 



SPECIFICATIONS AND CONTRACTS. 89 

You may have noticed that while this contract contains many r.iquidated Damages 

clauses that are not included in the ordinary type of construction 

contract, the latter has certain provisions that do not exist in the 

former, notably a clause for "liquidated damages." The reason 

for this omission is that under the assumed conditions it was 

impossible to set any dates for the completion of the various 

structures or of the entire work involved; hence no penalty could be 

demanded. 

I desire to call your attention to a feature of this method of Cost-plus-Percentage 

Plan 

letting work on a percentage basis that is, perhaps, foreign to the 

subject of the lecture — viz., the unusually large amount of labor that 

it involves for the engineers, who, in addition to their ordinary 

duties, have practically to assume the functions of administrators. 

For this reason their fees on such work should be greater than on 

ordinary contract construction. 

As it is my intention to send to each of you later a copy of this Practical Problem, 

Contract Plan 
lecture, I am going to ask that you study the preceding contract 

carefully and check it against the list of requirements that I have 
given for scientific contract-writing, in order to see whether any- 
thing of importance has been omitted and how thoroughly the 
document has been prepared. This suggestion will apply also to all 
the succeeding examples of contracts. Such a study will do far 
more to teach you how to prepare proper contracts than would the 
listening to twenty lectures. You could, if you so desire, carry the 
.study still further by assuming all the conditions precedent for some 
other type of contract, then prepare the document so as to embody 
in it all the principles and important features that I am advocating. 
On account of your inexperience in the business features of engineer- 
ing, your productions would naturally be somewhat crude, but the 
henefit to yourselves from the preparation of such essays would be 
very great, especially if you were to submit them for criticism to 
some good legal authority. 

Contracts looking to the development of large enterprises are 
not uncommon, but the attendant conditions are generally rather 
vague and uncertain; hence the drafting of a pioper agreement 
hetween the various parties concerned is quite a difficult matter. 

Let us assume that there is a project on foot to build in Example, Promoters' 

Agreement 
Colorado a large dam across Lonetree Gulch for the double purpose 

of irrigating the lands below the site and of developing electric 

power to be transmitted to Denver, and that a company named the 

Lonetree Gulch Development Company has been duly organized 



90 



SPECIFICATIONS AND CONTRACTS. 



Enterprise 



Franchise 



Charter of Limita- 
tions 



under the laws of the State of Colorado by John Smith and Arthur 
Jones, real estate brokers of Denver, for the purpose of consum- 
mating the enterprise. Let us assume also that these men in doing 
the preliminary work necessary to secure the charter, after spending 
four thousand dollars ($4,000.00), have exhausted all of their 
resources, and that, in order to bring the project into proper shape to 
present to financiers, considerable expensive engineering work is 
essential. On this account they have gone to Wallace & Henderson, 
Consulting Engineers, of Kansas City, Mo., who make a specialty of 
engineering large enterprises, and requested their assistance. These 
engineers have called in Green & Robinson, electrical engineers, 
also of Kansas City, Davidson & Osgood, masonry contractors, of 
Chicago, and Holman & Curtis, grading contractors, of Denver, to 
share with them the expense of doing all the preliminary work,. 
which they estimate will cost $6,000 in actual cash, with no allowance 
for personal engineering services. 

The original promoters have agreed to deliver to the engineering 
and contracting firms eighty (80) per cent, of their entire holdings 
in the enterprise, in compensation for the engineering work neces- 
sary to prepare a presentation of the scheme so thoroughly drawa 
that it will receive due consideration from capitalists. The two 
contracting firms have agreed to subscribe six thousand dollars 
($6,000.00) each to the general fund. The two engineering firms are 
to receive three thousand dollars ($3,000.00) each as compensation 
in full for their cash outlay, and are to devote their time and atten- 
tion to the preliminary work continuously till its completion. 

It is understood that the Lonetree Gulch Development Company 
has organized and has held sufficient meetings to enable it to secure- 
from the State of Colorado the charter for constructing the dam,, 
irrigation system, and power plant, but that no stock has been 
issued, only enough having been subscribed for to qualify the 
board of directors. The promoters value their charter and the 
recorded results of the work that they have done at fifteen thousand 
dollars ($15,000.00), but are willing to dispose of eighty (80) per 
cent, of their entire holdings for a preliminary cash payment of 
four thousand dollars ($4,000.00), and eight thousand dollars 
($8,000.00) to be paid to them by the two contracting firms and 
the two engineering firms jointly immediately after the enterprise- 
is financed and when compensation for their past and future work is. 
assured. 

It is understood also that, as the Lonetree Gulch Development 



SPECIFICATIONS AND CONTRACTS. 91 

Company's charter will expire in about six (6) months, the original 
promoters are to have its privileges extended by the State Legisla- 
ture for another three years, and that this must be done before the 
first payment of four thousand dollars ($4,000.00) on account will 
be made by the purchasers. 

The eighty (80) per cent, of their holdings that the promoters Compact 
sell is to be divided equally among the four buyers, so that each 
engineering company, each contracting company, and the original 
promoting company shall hold twenty (20) per cent, of the capital 
stock when it is distributed, which will be after the preliminary 
engineering work is done and before the financiers are approached. 

After paying the promoters four thousand dollars ($4,000.00) Engineering Ex- 
on account and the engineers six thousand dollars ($6,000.00) to 
reimburse them for their cash expenditures, there will be left two 
thousand dollars ($2,000.00) out of the twelve thousand dollars 
($12,000.00) subscribed by the two contractors. This balance is to 
be held by the Consulting Engineers to defray traveling and other 
expenses incident to the financing of the project after the preliminary 
engineering work and estimates are completed. 

It is further understood that the bargain made with the Engineering Talent 
financiers is to be conditioned on Wallace & Henderson being 
retained as principal engineers of the enterprise, with Green & 
Robinson as consulting electrical engineers, and that the total com- 
pensation for engineering is to be not less than five (5) per cent, of 
the entire cost of the work, including right of way and all other 
expenses connected with the consummation of the enterprise and 
completion of the construction, which fee is to be divided between 
the two firms in the ratio of the contract prices of the portions of 
the construction under their respective jurisdictions. It is also 
conditioned on the understanding that the contract for the masonry 
dam and for the construction required for power development 
and transmission is to be given to Davidson & Osgood, and that for 
the irrigation works and any other construction that there may be 
to Holman & Curtis, at schedule rates determined by the Consulting 
Engineers on the basis of estimated actual cost plus twenty (20) per 
cent, for profit. 

It is understood that in dealing with the financiers the latter Financial Backing 
will demand a large portion of the capital stock, and that the exact 
amount thereof which they are to receive will be settled by mutual 
agreement between the financiers on one side and the five interested 
parties on the other, and that the decision of a majority of the five 



92 SPECIFICATIONS AND CONTRACTS. 

in respect to this and all other matters in controversy shall govern. 
After the amount of stock to be relinquished is determined, each of 
the five equal holders of the entire stock shall relinquish the per- 
centage of his holdings that has been agreed upon. 

Draft of Contract Under the preceding circumstances and conditions the follow- 

ing is the draft of contract that I would make to define and secure 
the interests of all concerned and to prevent, if possible, the 
financiers from taking more of the cream of the enterprise than the 
amount to which they are justly entitled: 

Parties MEMORANDUM OP AGREEMENT, Made and signed this 

twentieth day of March, 1905, by and between John Smith and 
Arthur Jones, the party of the first part and sometimes termed 
herein the "Incorporators," real estate brokers of Denver, Colo., 
and sole owners of the stock in the Lonetree Gulch Development 
Company, a corporation of the State of Colorado, and the firm of 
Wallace & Henderson, Consulting Engineers, of Kansas City, Mo., 
the party of the second part, and sometimes termed herein the 
"Consulting Engineers," and the firm of Green & Robinson, elec- 
trical engineers, of Kansas City, Mo., the party of the third part, 
and sometimes termed herein the "Electrical Engineers," and the 
firm of Davidson & Osgood, masonry contractors, of Chicago, 111., 
the party of the fourth part, and sometimes termed herein the 
"Masonry Contractors," and the firm of Holman & Curtis, grading 
contractors, of Denver, Colo., the party of the fifth part, and some- 
times termed herein the "Grading Contractors." 

The four firms — viz., Wallace & Henderson, Green & Robinson, 
Davidson & Osgood, and Holman & Curtis — respectively the second, 
third, fourth and fifth parties to this agreement, are sometimes 
hereinafter termed the "Purchasers," the five parties to the contract 
are hereinafter sometimes termed collectively the "Syndicate," and 
the financiers who will later be requested to subscribe the money 
for the construction will be termed for convenience the "Bankers." 

rreambles WHEREAS, The party of the first part as incorporators and sole 

stock-owners of the Lonetree Gulch Development Company has 
obtained from the State of Colorado a charter permitting it to build 
a dam across Lonetree Gulch at a point to be selected by its engi- 
neers for the purpose of irrigating certain lands and developing 
and transmitting power, and 

WHEREAS, The party of the first part has spent in cash some 
four thousand dollars ($4,000.00) on preliminary surveys and 
borings, and 



SPECIFICATIONS AND CONTRACTS. 93 

WHEREAS, The party of the first part recognizes the fact that, 
in order so to present its project to capitalists as to induce them to 
subscribe for the bonds of the Company, it is necessary to do con- 
siderable expensive engineering work and to prepare from the 
results of it preliminary plans, specifications, estimates of cost, 
estimates of revenue, and other papers; and has in consequence 
approached the party of the second part with the suggestion that it 
form a combination to buy a controlling interest in the company 
and to do all the said preliminary engineering work and finance the 
project, and 

WHEREAS, The party of the second part, not being expert in 
electrical engineering, has decided to take in with it the party of 
the third part to do all the engineering on the power develop- 
ment, and 

WHEREAS, The engineers, not having the necessary cash to 
spare for the development of the enterprise, have called in the par- 
ties of the fourth and fifth parts to take a share of it in considera- 
tion of their furnishing the money required for the preliminary 
expenses, and 

WHEREAS, The parties of the second and third parts desire 
to secure the entire engineering work involved in the construction 
of the dam and irrigation plant, and in the development of the 
power, and 

- WHEREAS, The parties of the fourth and fifth parts desire 
to secure contracts for building the dam, irrigation plant, and 
all the machinery, houses, and other constructions for power 
; development.^ 

NOW THIS AGREEMENT WITNESSETH: 

First. — The party of the first part hereby agrees, for a consid- Stock Consideuatiou 
^ration hereinafter mentioned, to transfer to the parties of the 
second, third, fourth, and fifth parts, jointly, eighty (80) per cent 
of its entire holdings in the said project, including the before^ 
mentioned charter from the State of Colorado, and all the plans^ 
notes of surveys, and estimates made to date by or for the party of 
the first part, in order that the Purchasers may use them in their 
work of completing the plans, estimates, and other documents to 
present to financiers. 



^ A good practice is to insert a general clause, making mutual covenants 
or agreements between the parties, thus : — "For and in consideration of the 
mutual agreements herein contained, it is hereby mutually agreed between 
the parties hereto as fellows :" 



94 



SPECIFICATIONS AND CONTRACTS. 



Stock Distribution 



Subject-Mattel" 



Be«t Endeavors 



I'reliminaiy Opera- 
tions 



Working Capital 



Second. — As payment for the said eighty (80) per cent, of the 
Incorporators' holdings the Purchasers agree as follows: 

A. To pay to the Incorporators the sum of twelve thousand 
dollars ($12,000.00), four thousand dollars ($4,000.00) thereof 
within thirty (30) days after the extension of the charter for 
another three (3) years has been granted by the State of Colorado, 
and the remaining eight thousand dollars ($8,000.00) within 
"^hirty (30) days after the entire project has been financed, the 
capital secured, and the Purchasers assured of their contracts 
for the engineering and construction of the entire work by payment 
to them from the Bankers of not less than twenty thousand dollars 
($20,000.00) on account. 

B. To do at their own expense all the preliminary engineering 
work required for putting the project in proper condition to present 
to capitalists, including surveys for the dam, irrigating ditches, and 
transmission line for power; borings for the foundations of the dam; 
plans and specifications for the dam, irrigation system, and power 
development and transmission; a complete detailed estimate of 
cost of the entire enterprise, including right of way, land, construc- 
tion, machinery, legal fees, administration, and engineering; a com- 
plete and detailed estimate of probable earnings, and an exhaustive 
and well-drafted prospectus. 

C. To do their best (with the aid of the Incorporators) to 
finance the project and to secure bonuses and other aid from the 
United States and State Governments and from individuals who 
would be directly benefited by the consummation of the enterprise, 
and thus by the united efforts of the entire Syndicate to secure 
the necessary money to build the said dam, irrigation system, and 
power plant. 

Third. — The parties of the second and third parts, in consid- 
eration of certain remuneration hereinafter mentioned, hereby agree 
to do at their own expense all of the before-mentioned preliminary 
engineering work, including the making of all surveys, borings, plans, 
and estimates, and the preparation of the prospectus, and to give 
to the said work their undivided attention and the full benefit of 
their experience and professional skill. They also agree to finish, 
in the shortest practicable time consistent with thoroughness the 
entire work previously described. 

Fourth. — The parties of the fourth and fifth parts hereby agree 
to deposit in the hands of the party of the second part six thousand 
dollars ($6,000.00) each so as to form a working capital of twelve 



SPECIFICATIONS AND CONTRACTS. 95 

thousand dollars ($12,000.00), which capital will hereinafter be 
termed the "Purchasers' Fund." This fund is^ to be utilized in 
making the first payment of four thousand dollars ($4,000.00) on 
account to the Incorporators, paying for the preliminary engineering 
work, and presenting the fully prepared project to the Bankers. 

Fifth. — The parties of the second and third parts are to be^ paid Advances 
■out of the Purchasers' Fund the sum of six thousand dollars 
($6,000.00), to be divided equally between them as compensation for 
their cash outlay in connection with the preliminary engineering 
work described previously; and this amount is to^ be paid to them 
as soon as they deliver to the Syndicate the complete papers for 
submission to the Bankers. 

Sixth. — As scon as the preliminary engineering work is finished Stock Issue 
and the various papers depending upon it are prepared, a copy of 
•each of the said papers shall be delivered to each member of the 
Syndicate, and within ten (10) days from the date of such delivery 
the Incorporators shall issue and distribute to the Purchasers their 
eighty (80) per cent, of the capital stock of the Lonetree Gulch 
Development Company. The amount of stock thus delivered to the 
Purchasers shall immediately be distributed equally among the four 
firms of which the said Purchasers are composed. 

Seventh. — The two thousand dollars ($2,000.00) remaining in Exploit atioa 
the Purchasers' Fund after the Promoters and the Engineers are 
paid is to be used in presenting the project to the Bankers; and in 
•case that it be insufficient for the purpose, each member of the 
Syndicate will be required to contribute to the said fund from time » 

to time a certain small sum of money to be determined by the Con- 
;sulting Engineers as requisite for the purpose. 

Eighth. — When the Syndicate is makirg its bargain with the Bonus 
Bankers for the development of the project, it will be necessary to 
turn over to them a portion of the capital stock of the Company, 
which portion the Syndicate will naturally strive to make as small 
as possible. Each of the five parties to this agreement shall turn 
over to thfe said Bankers the portion of his total stock agreed upon, 
thus leaving the said five members equal owners of the balance of 
the said capital stock. 

This entire balance cf stock is to be deposited with a Trustee, Stock Syndicate 
selected by a majority vote of the five members of the Syndicate, to 
be held by him until the completion of the entire construction of the 



^ The substitution of the future "shall be" for the infinitive "is to be" 
is preferable. 



96 SPECIFICATIONS AND CONTRACTS. 

dam, irrigation system, and power plant. Should, however, as 
hereinafter provided for, any member of the Syndicate be expelled by 
a majority vote of that body, the Trustee shall transfer on his books, 
as directed by the Syndicate, the stock of the said expelled member. 
As soon as the said construction has been completed and the 
accounts of the Syndicate have been finally settled, but not before, 
the Trustee shall deliver to the owners thereof the stock standing in 
their names on the books. 

In case of any disagreement between the members of the 
Syndicate concerning the proportion of the total stock to be 
relinquished to the Bankers or concerning any other matter not 
specially covered herein, a majority vote of the said members of the 
Syndicate shall rule, and there shall be no appeal from any formal 
decision of the majority of the said Syndicate. 
I'romoters to Stand Ninth. — "When the Syndicate makes its bargain with the 

Bankers, its members shall stand firm for the following basis of 
agreement, and no modification whatsoever shall be made in the 
terms thereof without the unanimous consent in writing of all five 
members of the said Syndicate. 

A. The party of the second part is to be retained to do the 
entire engineering work in connection with the designing and con- 
struction of the dam and irrigation system, 

B. The party of the third part is to be retained to do the 
entire engineering work in connection with the designing and 
construction of the power plant and the power transmission line. 

I C. The compensation of the engineers for the work that they 

do after the project has been financed shall not be less than five (5) 
per cent, of the entire cost of the enterprise (barring, of course, the 
cost of the engineering itself) ; and they shall divide the total fee 
between them in the proportion that the contract cost of the work 
done under each one's charge bears to the total contract cost of the 
entire work. 

D. The party of the fourth part is to be given the contract 
for building the dam, power plant, and transmission line at schedule 
rates figured by the Consulting Engineers on the basis of actual 
cash cost, plus twenty (20) per cent, for profit. 

E. The party of the fifth part is to be given the contract for 
constructing the irrigation system and any other construction there 
may be besides that herein mentioned, at schedule rates figured by 
the Consulting Engineers on the basis of actual cash cost, plus 
twenty (20) per cent., for profit. 



SPECIFICATIONS AND CONTRACTS. 97 

F. In case that either the Bankers or the Contractors fail to 
approve the Consulting Engineers' figures for the schedule prices, 
the dispute is to be settled by arbitration, one arbitrator being 
appointed by each of the two disputants and the third by the two 
thus chosen. In case that the said two fail to agree upon a third 
arbitrator, the latter is to be appointed by the Governor of the 
State of Colorado. By the decision of a majority of these three 
arbitrators the said schedule rates are to be finally determined. 

G. In case that the Bankers decide that the construction is to 
be done by some other organization than the Lonetree Gulch Devel- 
opment Company, the members of the Syndicate are to receive free 
of charge the same percentages of stock in the new organization as 
it was agreed upon that they were to retain finally in the original 
company. 

Tenth. — The entire agreement is based upon the assumption Conditions rreccdent 
that the Legislature of the State of Colorado will grant to the Lone- 
tree Gulch Development Company, its successors or assigns, an exten- 
sion of time of three (3) years for starting work upon the 
construction and the same amount for the completion thereof. If 
the said extension of time be refused by the Legislature, this 
agreement is to become null and void. 

Eleventh. — If in the future it be found necessary to obtain United Efforts 
from the Colorado Legislature any further extension or extensions 
of time for either starting or finishing the construction, or for both, 
the Purchasers and the Incorporators hereby agree to use their best 
united efforts to secure such extension or extensions; and any 
expense incurred in obtaining such extension or extensions shall be 
borne equally by the five parties to this agreement. 

Twelfth. — The obligations and benefits of this agreement are Legal Representa- 
tives 
to be binding upon and to accrue to not only the various parties to 

this agreement, but also their executors, administrators, successors, 

or assigns, as the case may be. 

Thirteenth. — This agreement shall continue in existence either Duration of Contract 

until the entire project is consummated, or until the charter of 

the Company lapses because of failure to have it extended. 

Fourteenth. — In case that the Syndicate and the Bankers come Undivided Attention 
to terms and the construction proceeds, the parties of the second 
and third parts hereby agree to devote to the engineering work 
their full time and best attention, and to give to it the benefit of 
their experience and skill; and the parties of the fourth and fifth 



98 



SPECIFICATIONS AND CONTRACTS. 



Harmony Pledged 



Expulsion from Syn- 
dicate 



Sale of Stock 



Alterations 



Subletting 



parts hereby agree to do all the contracting work in a thorough and 
workmanlike manner and in strict accordance with the plans, 
specifications, and instructions of the engineers, all for the purpose 
of insuring that the entire construction shall be first-class in every 
particular and a credit to everybody concerned in its designing and 
building. 

Fifteenth. — All the members of the Syndicate hereby pledge 
themselves that they will in all cases try to act in harmony and 
to do all they can to develop the project and accomplish the aims 
for which the Syndicate was formed and which this document 
expounds. 

Sixteenth. — In case that any party of the Syndicate fails to 
keep the agreements into which it has entered in this document, it 
shall be given written notice by a majority of the said Syndicate 
to the effect that it is not acting in a manner which will redound 
to the best interests of the Syndicate, and that if it does not modify 
satisfactorily to the Syndicate its objectionable actions within 
twenty (20) days, it will be expelled from the said Syndicate. 

In this case the Syndicate will choose a successor and will sell 
to him for as large a sum of money as possible the entire holdings 
of the expelled party, including the stock deposited in the Trustee's 
hands, if any be then so deposited, and will deliver to the said 
expelled party the said sum of money, less the amount required to 
settle the expelled party's indebtedness to the Syndicate as a body 
and to its individual members, and to square all accounts of the 
said expelled party in connection with its work that is covered in 
this agreement. If the price at which the said stock is to be sold 
be unsatisfactory to the expelled party, the latter shall have the 
privilege of trying for the space of thirty (30) days to obtain a 
better price; and if the said expelled party secure a better price, the 
Syndicate shall either buy the stock at that price or allow the 
expelled party to sell it. 

Seventeenth. — No change or alteration shall be made in the 
terms or conditions of this agreement without the consent of all 
five (5) parties hereto in writing. 

Eighteenth. — The parties to this agreement hereby agree that 
they will neither sublet any of the work herein described nor sell 
any portion of their interests without the consent of all five (5) 
parties hereto in writing. 



SPECIFICATIONS AND CONTRACTS. 99 

IN WITNESS WHEREOF, the parties to this agreement have Execution 

hereunto set their hands and seals at the City of Denver, Colo. 

Dated the day, month, and year first herein written. 

Witnessed by ^o, ,% 

(Seal) 

(Seal) 

(Seal) 

(Seal) 

(Seal) 

The preceding contract is a very complicated document, possibly Form Proposed 
as complicated as any of you are ever likely to be required to draft. 
It has been written with care and has been checked by competent 
authority; hence it ought to serve well as a model for drafting 
agreements between several parties. 

The next type of contract that I shall present is one between 

the promoters of an enterprise and capitalists whose aid they are 

seeking to finance it. 

Let us assume that the same firm of engineers — viz., Wallace & Exfimple. Agreement 

to Finance 
Henderson, of Kansas City, Mo. — has developed the project for 

building a toll bridge over the Arkansas River and an electric rail- 
way between the cities of Van Buren and Fort Smith, and has formed 
in Arkansas a company named the Van Buren and Fort Smith 
Bridge and Railway Company to build the proposed line and 
structure; also that it has obtained a charter from the United States 
Government for bridging the river and franchises from the two 
cities for the construction of the electric railway; also that all 
isteps thus far have been taken in a perfectly legal manner, and 
that the Company's books and records are in proper shape. Only 
enough stock has been subscribed to qualify the directors, and the 
•entire stock is thus far controlled by the firm of engineers. 

It is assumed also that these engineers have taken the project Scheme Outlined 
to a firm of brokers, Raymond & Effingham, of Philadelphia, who 
are themselves capitalists, but who are not strong enough financially 
to underwrite the entire issue of bonds, the amount of cash required 
for the enterprise being in the neighborhood of eight hundred 
thousand dollars ($800,000.00). 

Under these conditions the contract that I would draft is as 
follows: 

MEMORANDUM OF AGREEMENT, 
l5y and between A. J. Wallace and G. I, Henderson, Consulting Parties Described 
Engineers, both of Kansas City, Mo., and copartners, doing business 



100 



SPECIFICATIONS AND CONTRACTS. 



Preamble 



Declaration 



Financial Scheme 



Duration 



Sale of Bonds 



(^apital Stock 



under th€f firm name of "Wallace & Henderson, the party of the first 
part, and sometimes hereinafter termed the "Promoters," and P. J. 
Raymond and S. L.. Effingham, both of Philadelphia, Pa., copartners,, 
doing business under the firm name of Raymond & Effingham, the 
party of the second part, and sometimes hereinafter termed the 
"Brokers." 

WHEREAS, The said Wallace & Henderson have prepared 
complete in every essential particular a project for building an 
electric railway between Van Buren and Fort Smith in the State of 
Arkansas, with a toll bridge for vehicular and electric railway 
traffic to cross the Arkansas River on the line of the said railway, 
and have organized in the State of Arkansas a company for building 
the said railway and bridge, and have taken the said project to the 
said Raymond & Effingham to finance with a resulting mutual benefit 
to both parties, now, therefore, 

THIS AGREEMENT WITNESSETH: 
First. — The incorporated name of the Company for building the 
electric railway and bridge is the Van Buren and Fort Smith Bridge 
and Railway Company, and the entire stock thereof is now owned 
and controlled by the party of the first part. 

Second. — The party of the first part hereby agrees to place in 
the hands of the party of the second part, and in its hands only, the 
financing of its project to build the said electric railway and bridge. 

Third. — The party of the second part hereby agrees to use its 
best efforts to effect the underwriting of the bonds of the said 
Company, and in every way to endeavor to finance the project with 
the least possible delay. 

Fourth. — The parties hereto hereby agree to divide equally 
between them all profits resulting from the disposal of the Com- 
pany's securities. 

Fifth. — The duration of this contract shall be six (6) months 

from the date of its signature, but its life may be extended by the 

consent of both parties hereto in writing. 

t 

Sixth. — The amount of bonds to be sold for developing the 
project shall be one million dollars, and the Brokers in disposing of 
them are to obtain as high a price as possible, under no circum- 
stances parting with them for less than eighty-five (85) cents on 
the dollar. 

Seventh. — In dealing with the bankers and underwriters, the 
Brokers are to keep as low as possible the percentage of the capital 



SPECIFICATIONS AND CONTRACTS. 101 

stock of the Company that is given with the bonds; and under no 
circumstances shall the amount so given, hypothecated, or pledged 
be so large as to cause the control of the enterprise to pass out of 
the hands of the parties of the first and second parts. 

Whatever stock is left over after the arrangement with the 
bankers and underwriters is consummated is to be divided equally 
between the two parties to this agreement. 

In case that the Brokers in making the sale of the bonds find Stock Banus 
it necessary to part with more than forty (40) per cent, of the capital 
stock, they shall not finally agree to do so until after they have 
received in writing the assent of the Promoters to the proposed 
arrangement. 

Eighth. — It is not contemplated that either Wallace & Hender- Privilege of rromo 
son or Raymond & Effingham will be underwriters for the bonds, 
but either of them may subscribe, if they so desire, and they shall 
receive with the bonds they buy the proportion of stock set apart 
to go to the underwriters, the same as if they were in no other way 
connected with the project, and in addition to and entirely apart 
from any profits to be divided under this agreement. 

Ninth. — The Brokers hereby agree that in any financial arrange- i^ngineers to be Ke 

tciined 
ment entered into by them they will see that there is provision made 

by which the party of the first part shall be retained as engineers 
of the Company to design and supervise the construction of the 
railway and bridge, with full control over all matters of an engineer- 
ing character, and that they shall receive in compensation for their 
services and for those of their assistants a gross fee of not less than 
five (5) per cent, of the grand total cost of the railway and bridge, 
excluding from the said total only the Engineers' and the Brokers' 
fees. 

In the same manner the Promoters agree, in so far as it is Commission 
within their control, to see that Raymond & Effingham receive for 
their services in financing the project a gross fee of three (3) per 
cent, of the said grand total cost, corputed as just described. 

It is distinctly understood, however, that neither party hereto 
is assuming individual or personal liability to the other for the said 
fee, but both parties are in good faith to do everything which lies 
in their power or control to see that the said fees are paid. 

Tenth. — No change or alteration shall be made in the terms or No Changes 
conditions of this agreement without the consent of both parties 
hereto in writing. 



Example, Copartnor- 
6hip 



Introduction 



rreamWe 



Name 



Duration 



Salary 



102 SPECIFICATIONS AND CONTRACTS. 

IN WITNESS WHEREOF, the parties to this agreement have 
hereunto set their hands and. seals in the City of Philadelphia, Pa., 
this twentieth day of March, 1905. 
Witnessed by 

(Seal) 

(Seal) 

(Seal) 

(Seal) 

I shall give you before closing one more example of contract 
preparation, illustrating a type of agreement that may be useful to 
you some day. It is a partnership contract between two engineers. 

Let us assume that Mr. M. S. Clements, hydraulic and sanitary 
engineer, of St. Louis, Mo., who has been practising successfully 
there in those specialties for many years, desires to take in as 
junior partner his principal assistant engineer, Mr. K. L= Strange, 
and that all the details of the partnership have been settled. I 
shall not state them in advance, as they will appear in the document, 
which I would draft thus: 

MEMORANDUM OF AGREEMENT, by and between M. S. 
Clements, Civil Engineer, of St. Louis, Mo., the party of the first 
part, and K. L. Strange, Civil Engineer, of St. Louis, Mf)., the party 
of the second part. 

WHEREAS, The party of the first part has for many years 
been established in St. Louis, Mo., as a consulting hydraulic and 
sanitary engineer, and has developed a large and successful prac- 
tice, and 

WHEREAS, The party of the second part has been in the 
employ of the party of the first part for over seven (7) years, 
and during the last three (3) years has been his Principal Assistant 
Engineer, and 

WHEREAS, The parties to this agreement have concluded that 
it will be mutually beneficial to enter into a partnership to prosecute 
the business of civil engineering in the special lines of hydraulic and 
sanitary work, 

NOW THIS AGREEMENT WITNESSETH: 
First. — The name and designation of the firm shall be Clements 

& Strange, Consulting Engineers. 

Second. — The agreement shall be operative on and after 

January 1, 1905. 

Third. — The party of the second part shall in any event receive 

fifteen hundred dollars ($1,500.00) per annum; i. e., if his share of 



SPECIFICATIONS AND CONTRACTS. 103 

the net profits for any year be less than that amount, the difference 
between his said share and the said amount shall be paid to him 
out of the total profits of the firm for the year, or, failing these, by 
the party of the first part. 

Fourth. — The share of the net profits of the party of the second Share in Profits 
part shall be as follows: 

Up to January 1, 1908, twenty-five (25) per cent.; from then 
until January 1, 1911, thirty (30) per cent.; from then until January 
1, 1914, thirty-five (35) per cent.; from then until January 1, 1917, 
forty (40) per cent., and after the latter date, forty-five (45) per 
cent. 

Fifth. — The net profits for any year shall be figured by sub- I'vofits Defined 
tracting from the gross receipts for the said year the entire 
business expenses for the year, such as those incurred in doing 
office work, field work, traveling, and advertising, but the aforesaid 
guaranteed amount of fifteen hundred dollars ($1,500.00) per annum 
shall not be considered as a part of the office expenses. 

Sixth. — An accurate set of books shall be kept, from which Books of Account 
can readily be computed the net profits for the year, and a cash 
settlement shall be made at the beginning of each year for the 
preceding year. 

Seventh. — If any completed piece of work be unpaid for at the Payments of Sliares 
end of the year, it shall be assumed as paid for in making the settle- 
ment; but the party of the second part shall not receive his share 
of the delayed payment until after the said payment is made. 

Eighth.— At any time after January 1, 1914, the party of the increasing,' interest 
second part shall have the privilege of purchasing the balance of a 
half-interest in the business by paying to the party of the first part 
in cash one of the following sums, according to the date of the 
establishment of the equal partnership. 

In 1914 $15,000.00 

In 1915 13,000.00 

In 191G 11,000.00 

In 1917 : 9,000.00 

In 1918 7,000.00 

In 1919 5,000.00 

After 1919 3,000.00 

The payment of any one of the preceding amounts shall not only ^''^1°^ Property 
entitle the party of the second part to a half-interest in all future 
business, but shall also make him a half-owner of all office fixtures, 
library, instruments, patents, records, and field apparatus that may 



104 



SPECIFICATIONS AND CONTRACTS. 



I'atents 



Joint Patents 



Joint Efforts 



Copyriglits 



Authorship 



be owned by the party of the first part at the time of the formation 
of the equal partnership, it being understood that all apparatus, 
books, etc., etc., purchased for the firm before the establishment of 
the equal partnership shall be the personal property of the party of 
the first part, or simply an addition to his present office property, 
notwithstanding the fact that they have been paid for out of the 
funds of the firm. 

Ninth. — All royalties from patents owned by the party of the first 
part on January 1, 1905, shall be thrown into the gross profits of the 
business. 

Tenth. — If in the future any joint patent is taken out, it shall 
be the property of the office, and any royalty or other gain therefrom 
shall be thrown into the gross receipts of the office. In case of a 
dissolution of partnership at any time, the future interest of all such 
joint patents shall be arranged according to the basis of division 
of office profits governing at the time of the said dissolution, and 
both parties shall afterward have the right to use such patents for 
their own professional work without accounting; but in case of 
royalty thereon by other parties, the amount of said royalty shall 
be divided between the two parties to this agreement according to the 
basis of division herein provided for. 

Eleventh. — Neither party to this agreement shall take out for 
himself any patent for anything connected directly or indirectly 
with the work of the office without first obtaining from the other 
party written permission to do so; but a written refusal or a verbal 
refusal in the presence of witnesses to enter into a proposed joint 
patent shall be considered an equivalent to giving such written 
permission. 

Twelfth. — If the parties to this agreement write a joint book 
for publication, the profits on same shall be considered a part of 
the office receipts, and shall be divided accordingly ; and any technical 
book written by either party shall be treated in like manner as long 
as the partnership continues. In case of a dissolution of partnership, 
each party shall, for the future, own outright any books published in 
his own name; also the percentage of interest in all joint books 
that is the basis of division of office profits governing at the time of 
the said dissolution. 

The party of the second part, however, shall be entitled to no 
pecuniary interest in any books written by the party of the first part 
prior to January 1, 1905, even though future additions thereto be 



SPECIFICATIONS AND CONTRACTS. 105 

made. On the other hand, no expense connected with such solely 
individual books shall be considered a part of the office expenses. 

Thirteenth. — Whenever the contemplated future equal partner^ lOcjiial Inun-csis 
ship is consummated, the profits on all contracts for work entered 
into before the date of the equal partnership shall be divided accord- 
ing to the terms of this agreement, and shall not be considered as 
pertaining to the said equal partnership. 

Fourteenth. — In the event of the death of the party of the first Donth 
part before the formation of the contemplated equal partnership, the 
party of the second part shall have the privilege of purchasing the 
good-will of the business, together with all of the office fixtures, 
library, records, instruments, and other property connected with the 
"business, except as hereinafter stated, by paying to the estate of 
the party of the first part the sum of three thousand dollars 
($3,000.00) in cash or in an equivalent that will be satisfactory to 
the executors of the said estate. 

It is understood that this sum does not cover any patents. Settlement 
■either individual or joint, but that the estate of the party of the 
first part shall have a half-interest in all royalties therefrom, unless 
after the death of the party of the first part, the party of the second 
part purchases from the estate the said patents or shares in patents. 
And the party of the second part at the settlement of the office 
affairs, after the death of the party of the first part, shall have the 
privilege of purchasing all of the said patents at a price to be 
agreed upon between the said second party and the said executors; Arbitration 
and if an agreement as to their value cannot be otherwise arrived at, 
the price shall be settled by arbitration, the party of the second part 
appointing one arbitrator, the executors another, and the two thus 
chosen, the third. In case of failure of the two arbitrators first 
chosen to determine upon a third, the latter shall be appointed by 
the Mayor of St. Louis. By the decision of the majority of these 
three arbitrators both the party of the second part and the executors 
shall be finally bound. 

In case, however, the party of the second part elects not to Use of Patents 
purchase the said patents, he shall have the use of the joint patents 
by special agreement in each case with the executors, but the latter 
shall have full control of all Clements' individual patents. 

In case of the death of the party of the first part, either before Completion of Work 
or after the formation of the contemplated equal partnership, the 
party of the second part shall finisTi all work on all contracts then 
uncompleted, and shall pay over to the estate of the said first party 



106 



SPECIFICATIONS AND CONTRACTS. 



Net I'rofits 



Sale of ratents 



Control 



Cancellation 



Dissolution 



the latter's full share of all net profits thereon, as computed by the 
rate of division governing at the date of his death. 

Fifteenth. — In case of the death of the party of the second part 
prior to that of the party of the first part, the estate of the former 
shall receive the same percentage of net profits from all unfinished 
work as would have been his under the terms of this contract at 
the time of his death. And the party of the first part shall have the 
use of ail joint patents held by the firm, but the estate of the party 
of the second part shall be entitled to the same percentage of royal- 
ties accruing from the use of the said joint patents as the party of 
the second part would at the time of his death have been entitled 
to under the terms of this contract. 

■ Provided that the party of the first part shall have the privilege 
of purchasing from the Strange estate the interest in all joint 
patents held by the party of the second part at the time of his deaths 
according to the arrangement previously outlined for the case of 
the death of the party of the first part. 

Sixteenth. — Until the contemplated future equal partnership be 
entered into, the policy and management of all business affairs shall 
rest entirely with the party of the first part, but the party of the 
second part shall be consulted, as in the past. 

Seventeenth. — Should either party to this agreement at any time 
desire to cancel the same, he shall give in writing to the other party 
twelve (12) months' notice of his intention to do so; and, in case 
of failure so to notify, he shall, at the date of severing his connec- 
tion with the business, pay to the said other party in cash the sum 
of one thousand dollars ($1,000.00), which amount shall not be 
considered as a penalty, but as liquidated damages (for loss to the 
said other party) herein agreed upon by the contracting parties. 

Eighteenth. — In case of a dissolution of partnership with twelve 
(12) months' notice, all work connected with contracts entered into 
before the giving of notice of dissolution shall be completed, if 
possible; and the profits thereon shall be divided according to the 
terms of this contract. All new work taken during these twelve 
(12) months shall belong to the party who is to continue the businessf 
and shall be done at his expense, the other party being concerned 
with it in no manner whatsoever. If at the end of twelve (12) 
months there still be any old work uncompleted, the party who con- 
tinues the business of the office shall finish it and shall give to the 
other party after the final settlement therefor is made his proper 
share of the net profits thereon. It is understood that, unless other- 



SPECIFICATIONS AND CONTRACTS. 107 

wise agreed upon, the party of the first part shall be the one to carry- 
on the business in case of a dissolution of partnership. 

Nineteenth. — But in the case of dissolution of partnership Notico of Dissolu- 
without the twelve (12) months' notice, there shall be made an 
immediate settlement of the affairs of the firm, by which the party 
leaving shall be paid by the other party in either cash or notes a 
fair allowance for his interest in all unfinished contracts. If the 
two parties cannot agree upon the terms of the settlement, the matter 
shall be fixed by arbitration in a manner similar to that herein- 
before described. 

Twentieth. — No change or alteration shall be made in the terms No Changes 
or conditions of this agreement without the consent of both parties 
hereto in writing. ' 

Twenty-first. — The parties to this agreement hereby agree that Effort 
they will at all times do all that lies in their power to further and 
increase the business of the firm, and to establish for it a world- 
wide reputation for doing thorough, honest, scientific, economic, 
and skilful work. 

IN WITNESS WHEREOF, The parties to this agreement have Execution 
hereunto set their hands in the City of St. Louis, Mo., this tenth day 
of December, 1904. 

Witnessed by 



In concluding this lecture there are a few general matters of Conclusion 

importance to which I desire to call your attention, especially as 

they are often ignored in the preparation of contracts. 

No erasure with a knife, rubber, or other similar instrument Erasures aad Cor- 
rections 
should be made in any legal document, but if a mistake has occurred, 

it should be lined out in the case of handwriting and crossed out 

with a close repetition of the letter x in the case of typewriting. 

Corrections like these must evidently have been made while the 

document was being transcribed and before it was signed, while in 

case of an erasure no one can say what was originally written, or 

that the correction was not made after the signing of the document. 

As a matter of precaution, it is advisable to have each signer of a 

contract initial on the margin of the page on which it occurs each 

correction that the document contains. This will show conclusively 

that all the interested parties concurred in making the changes. 

However, if a draft of an agreement contain many such corrections, 

it is better to have it recopied before obtaining the signatures. 



108 



SPECIFICATIONS AND CONTRACTS. 



Fraudulent Changes 



Sunday Laws 



Deliberation 



Counsel 



Length of Discourse 



Theoretically, every contract should be written on a single page, 
for otherwise what is there to prevent a dishonest person from 
removing all the pages except the last and replacing them with 
similar pages containing matter prepared in his own interests? 
Some people meet this objection by pasting together in one continu- 
ous piece all the sheets of the document and marking in red ink on 
the joined parts a waved line that passes alternately from one sheet 
to the other. Others take the precaution to have all the parties to 
the agreement initial each page of the bound sheets. The manifold- 
ing of typewritten documents is a fairly good means for preventing 
the making of fraudulent changes in such papers; but in case 
that all copies but one are destroyed, this check would become 
inoperative. 

Contracts executed on Sunday are illegal. They may be agreed 
upon and drafted on Sunday, but to be valid they must be dated and 
signed on some other day of the week. 

It is always advisable to let a contract "get cold" before 
signing it; i. e., it should be set aside for at least one night and read 
over carefully the next day by all the parties in order that each 
may make sure that the document expresses exactly in every par- 
ticular what has been agreed upon verbally, and that there is no 
clause in it prejudicial to his interests. By giving the mind a rest 
one is often able to comprehend a document more clearly and thus 
save himself or his clients from future trouble or pecuniary loss. 

After an engineer has prepared a contract and has added all the 
finishing touches to it, he should submit the draft before it is signed 
to a competent lawyer for his comment. This is better than letting 
the lawyer draw it in the first place, for I contend that a competent 
engineer can draft an engineering contract better than any lawyer; 
nevertheless, an independent check is necessary for any important 
document, and who so competent to check a legal paper as an 
attorney! 

When I started to write this address it was my intention to 
conclude it with a short summary of the Law of Contracts, but 
its dimensions are already far in excess of those I originally con- 
templated, and perhaps, also, some of you may be thinking, in 
excess of the legitimate limits of a lecture to long-suffering engineer- 
ing students; consequently I shall instead advise you to study the 
subject carefully in such standard works as those of Wait, Johnson, 
and Parsons. I trust that listening to this address and studying 
it later after it is printed will lead you better to comprehend and 



SPECIFICATIONS AND CONTRACTS. 109 

to appreciate the dicta of legal authorities on the subject of Engineer- 
ing Contracts. 

Finally, I desire to call your attention to the fact that I have 
by no means endeavored to cover in this address the entire ground 
of this important subject, but only to show you its practical features 
and how you may prepare yourselves by hard study to become expert 
in the preparation of legal-engineering documents. 



Examples for Practice in Contract 

Writing. 



Cases for Practice It will not be necessary for the student, before starting to write 

one of the contracts outlined in the following list, to obtain specimens 
of actual contracts for similar cases, because all the necessary 
instructions for doing such writing are given in the preceding 
lecture. Nevertheless, it would do him no harm were he to peruse 
in advance of beginning his work a few such contracts. He would 
probably find, though, that they do not come up to the criterion of 
excellence and thoroughness given in that lecture; and on this 
account it would hardly pay either him or his professor to take 
much trouble to obtain such specimens of actual contracts. 

In case that the student finds that the "Conditions Precedent" 
are not complete enough to enable him to draft a proper contract for 
any one of the following "Cases," he will be at liberty to supply as. 
he may see fit such omitted conditions. 

CONDITIONS PRECEDENT FOR CONTRACTS TO BE DRAFTED' 
FOR PRACTICE BY ENGINEERING STUDENTS. 

CASE NO. 1. 

Electric Street Rail- The firm of Winans & Jenkinson, Consulting Engineers, of 

way and Viaduct 

Washington, D. C, has agreed with the Capital Rapid Transit Com- 
pany, of Richmond, Va. (a corporation of that State), to do all the 
engineering work in connection with the exploiting of that Com- 
pany's project to build an electric street railway line and a toll- 
viaduct for vehicular and other traffic in the City of Richmond, and 
in connection with the designing and construction of the said rail- 
way and viaduct, in case that the Company be successful in raising 
the necessary money. 

The work of the Engineers is to be divided into three parts, viz.: 

A. — A study of the project so as to determine the total cost of 

construction, the probable income from traffic of all kinds, and the; 

probable cost of operation and maintenance; also the preparation 

of a report to the Company embodying the results of their investi- 



SPECIFICATIONS AND CONTRACTS. Ill 

gations, which report is to be put in proper shape for submission 
to capitalists in order to induce them to subscribe for the bonds 
and other securities of the Company. 

B, — Aiding the officers or representatives of the Company in 
their interviews with capitalists and endeavoring in every legitimate 
way to help finance the enterprise. 

C. — Doing the entire engineering work connected with the 
designing and construction of the proposed railway and viaduct, 
including inspection of viaduct metal at the rolling-mills and the 
.shops, the operating machinery at the places where it is manufac- 
tured, and all other materials in the field, unless the Contractors 
elect to have any of such materials inspected elsewhere, in which 
case they shall be so inspected by the Engineers but at the Con- 
tractors' expense. 

The Company is to pay the Engineers thus: 

For the preliminary work and report, twenty-five hundred 
dollars ($2,500.00). 

For aiding in financirg the project, nothing. 

For designing, inspection, and superintendence of construction, 
a fee of five (5) per cent, of the grand total cost of the finished 
railway and viaduct, the division of the said fee being on the basis 
of three (3) per cent, for plans and specifications and two (2) per 
cent, for inspection and superintendence. 

The Company is to do its best to secure from Richmond capital- 
ists one-half of the money required for the entire enterprise. 

If the report of the Engineers prove unfavorable, their contract 
with the Company is to be closed, and they are to be paid at once 
the twenty-five hundred dollars ($2,500.00) mentioned; but if 'r. 
should be favorable to the viaduct and unfavorable to the railroad, 
the Company is to endeavor to raise the money for the viaduct, and 
in case of its success the Engineers are to design, inspect, and 
supervise the construction of the said viaduct for five (5) per cent. 
of the entire cost of the finished structure. 

In case that the Engineers' report prove favorable, but the 
Company fail to secure the necessary money and abandon the 
enterprise, the Engineers are to receive a further payment of one 
thousand dollars ($1,000.00), and their contract is then to be ter- 
minated. 

If, after the report is finished and the project is presented to 
capitalists, it develop that the scheme can be materialized only by 
the resignation of Winans & Jenkinson as engineers for the con- 



112 SPECIFICATIONS AND CONTRACTS. 

struction of the railway and viaduct, they shall terminate their 
contract with the Company and shall receive for so doing a further 
payment of ten thousand dollars ($10,000.00). But should they be 
retained on the viaduct and not on the railway, this ten-thousand- 
dollar ($10,000.00) payment is to be reduced in the proportion that 
the estimated cost of the railway bears to the estimated cost of the 
railway and viaduct. 

If, after the Company gives formal orders to the Engineers to 
proceed with the preparation of plans to submit to contractors for 
tendering, the project should be abandoned, the Engineers are to be 
paid in full for all work done up to date, plus one-half of the balance 
of their estimated total fee. 

Draft the contract between the Company and the Engineers for 
the above "Conditions Precedent/' 

CASE NO. 2. 

Viadnet The Engineers of the Capital Rapid Transit Company (men- 

tioned in Case No. 1) have prepared plans and specifications for the 
proposed viaduct and have called for bids thereon at schedule rates 
for excavation and for all the various materials in place, with the 
result that the Virginia Bridge Company, a corporation of the State 
of West Virginia, and having headquarters at Wheeling, W. Va., has 
submitted the most satisfactory tender, their bid being as follows: 

For excavation, including back-filling, one dollar and sixty 
cents ($1.60) per cubic yard. 

For piles in place, sixty-two cents (62c.) per lineal foot, no 
allowance being made for the ends cut off. 

For substructure concrete in place, nine dollars and forty cents 
($9.40) per cubic yard. 

For superstructure metal (excluding hand-rails, railway rails 
and trolley-poles), erected and painted, four and two-tenths cents 
(4.2c.) per pound. 

For reinforced concrete to support the pavement, exclusive of 
the reinforcing bars which are to be paid for as superstructure 
metal, ten dollars and fifty cents ($10.50) per cubic yard. 

For asphalt pavement, including a ten-year guarantee for repairs, 
one dollar and fifteen cents ($1.15) per square yard. 

For hand-rails in place, two dollars and thirty cents ($2.30) per. 
lineal foot of hand-rail. 

For railway rails in place, including bonding, one dollar and 
twenty-five cents ($1.25) per lineal foot of single track. 



SPECIFICATIONS AND CONTRACTS. 113 

For drainage down-spouts in place, ten cents (10c.) per lineal 
foot of down-spout. 

The trolley-poles and the trolley-line are not to be included in 
this contract. 

The entire work is to be completed within seven (7) months 
from the date of signing the contract, under a forfeit of fifty dollars 
($50.00) per day, which forfeit has not been mentioned in the 
specifications that are to form a part of the contract. 

The schedule prices to be adopted in making partial payments 
for all work as it progresses are to be determined by the Engineer. 

The amount of bond required is forty thousand dollars 
($40,000.00). 

Draft the contract between the Company and the Contractor for 
the preceding conditions. 

CASE NO. 3. 

The Kansas City Southwestern Railway Company, a corporation Replacing Bridge 
of the State of Missouri, being desirous of replacing four (4) old 
and seriously overloaded, single-track, steel spans of two hundred 
(200) feet each, at four (4) different places on the line of its road, 
has had four (4) new, riveted, through spans manufactured by the 
Pennsylvania Steel Company, all the metal for which spans, includ- 
ing an ample supply of rivets and pilot nuts for driving the pedestal 
pins, is to be delivered by April 15, 1906, at a certain point on the 
line of the Company's railway; and has had its Consulting Engineers 
call for bids for the erection of the said metal and for the furnish- 
ing and putting in place of the deck-timbers and for laying the 
rails that are furnished by the Railway Company, the Contractor 
having to furnish and put in place falsework strong enough to 
carry safely the passing trains, and having to take down, mark, and 
store the metal of the old spans. 

The Central Bridge Company, of Kansas City, Mo., a corporation 
of the State of Missouri, made the most satisfactory tender, which 
was as follows: 

For falsework in place, strong enough to carry safely the Com- 
pany's trains, seven dollars and twenty-five cents ($7.25) per lineal 
foot of structure. 

For taking down, marking, and storing the metal of the old 
spans according to the directions of the Engineer, two dollars and 
eighty cents ($2.80) per lineal foot of structure removed. 

For erecting and painting the new metal-work of the super- 
structure, eight-tenths of a cent (0.8c.) per pound. 



114 SPECIFICATIONS AND CONTRACTS. 

For furnishing and putting in place the timber for the decks, 
thirty-five dollars ($35.00) per M. feet B. M. 

For laying rails, fifteen cents (15c.) per lineal foot of single 
track. 

Provided that the metal is delivered at the bridge-sites by May 
1, 1906, the last of the four spans is to be completed and ready for 
traffic by October 1, 1906; and in case of delay in the delivering of 
the said metal, the time for completion is to be properly extended. 

The Contractor will not be allowed to interfere with the passage 
of any passenger train more than one hour or with that of any 
freight train more than two (2) hours, unless special written per- 
mission to the contrary be given by the Company. 

The schedule prices for partial payments on the work as it 
progresses are to be determined by the Engineer. 

A bond of twenty-five thousand dollars ($25,000.00) will be 
required as a guarantee that the Contractor will comply with all the 
requirements of the specifications and contract. 

The forfeiture for non-completion of the work on time shall be 
fifty dollars ($50.00) per day per span; but this forfeiture shall not 
be exercised by the Company unless the Engineer deem that such 
enforcement is just and called for by either the Contractor's wilful 
delay or the Company's actual loss. 

Draft a contract between the Railway Company and the Con- 
tractor for the preceding conditions, taking special care to protect 
the Company against detention or wreckage of trains. 

CASE NO. 4. 

Promoters' Agree- Two engineers of New York City, John Brown and James Smith, 

ment 

desire to enter into a contract to prosecute a general engineering 

practice, starting on January 1, 1907. 

Brown is the better situated financially, consequently he is to 
advance ten thousand dollars ($10,000.00) to the firm as a working 
* capital and is to receive six (6) per cent, interest on it, but each 

year Smith must put one thousand dollars ($1,000.00) of his share 
of the net earnings of the firm into the working fund, and Brown 
is to draw out annually a like amount until their two deposits are 
equalized. Brown receiving each year six per cent, on the excess of 
his deposit over that of Smith. 

For the first year Brown is to receive seventy-five (75) per cent, 
-of the total net profits and Smith twenty-five (25) per cent., and each 
year Brown's share is to decrease five (5) per cent, and Smith's is 



SPECIFICATIONS AND CONTRACTS. 115 

to increase that amount until the division becomes equal. But 
should Smith fail for any year to deposit his one thousand dollars 
($1,000.00), no increase for that year will he allowed him; but the 
next year he shall have the privilege of depositing two thousand 
dollars ($2,000.00) and receiving an increase of ten (10) per cent. 
In case of failure for two consecutive years to deposit the amount 
agreed upon. Smith shall not have the privilege of depositing three 
thousand dollars ($3,000.00) at once and claiming an increase of 
fifteen (15) per cent., but the amount of his deposit at any one time 
shall be limited to two thousand dollars ($2,000.00), and his corre- 
sponding increase in percentage shall be limited to ten (10). 
Should the business of the firm run so low in any year that Smith's 
share of the net profits is less than twelve hundred dollars 
($1,200.00), Brown out of his private funds shall pay Smith the 
difference between twelve hundred dollars ($1,200.00) and Smith's 
said share. 

At the outset the entire equipment of the office, valued at five 
thousand dollars ($5,000.00), is to be furnished by Brown, and any 
additional equipment required from time to time is to be paid for 
cut of the ofiice earnings; and when the partnership is placed upon 
an equal basis. Smith shall pay Brown twenty-five hundred dollars 
($2,500.00), with interest thereon at six (6) per cent, from the date 
of the forming of the partnership until that of the equalization, after 
which Smith shall be a half-owner in all of the office equipment. 
Before the partnership is equalized Brown may dissolve it at any 
time by giving Smith six (6) months' notice in writing and paying 
him one thousand dollars ($1,000.00) and his regular share of the 
net profits on all unfinishd work, Smith having the option of taking 
at once in cash the amount of the said net profits as estimated by 
Brown or of waiting for the completion of the said unfinished work 
and receiving then his exact share of the said net profits. 

Smith may terminate the contract at any time by giving Brown 
six (6) months' written notice and waiving all claim to profits on 
unfinished work; but should he fail to give the six months' notice, 
he is to pay Brown five hundred dollars ($500.00) for his failure 
to do so. 

In the event of the death of either of the partners, the survivor 
shall finish all business uncompleted at the time of the said death, 
and shall turn over to the estate of his deceased partner that 
partner's share of the net profits on such unfinished business, figured 
according to the rate of division ruling at the time of said death. 



116 



SPECIFICATIONS AND CuNTRACTS. 



^jinployraent 



Promoter's Agree- 
ment 



In case of Smith's death before the formation of the equal part- 
nership his estate shall have no claim against Brown for any share 
of the office equipment; but in case that his death occur after the 
formation of the equal partnership Brown shall pay to his estate 
one-half of the value of the said outfit as appraised by three 
arbitrators. 

In case of Brown's death before the formation of the equal 
partnership, Smith shall have the right to purchase the entire ofiice 
equipment by paying to Brown's estate the sum of five thousand 
dollars ($5,000.00); but if Brown's death occur after the formation 
of the equal partnership. Smith must pay to his estate one-half of 
the appraised value of the said equipment. 

Draft the contract between the two partners upon the preceding 
basis. 

CASE NO. 5. 

Augustus Hurlburt, of Lexington, Mo., a man of some means, has 
conceived the idea of building a toll bridge over the Missouri River 
at his city, and desires to engage the services of Henry Jones, a civil 
engineer, of St. Louis, Mo., who makes a specialty of bridgework, to 
assist in the financing of the enterprise and to do all the engineering 
work required from start to finish. As Jones is without means, 
Hurlburt is to furnish all the cash required to materialize the project, 
but Jones is to receive no personal compensation until the enter- 
prise is financed, after which he is to get a net fee of two and one- 
half (2.5) per cent, of the grand total cost of the entire structure, 
payable monthly proportionately to the value of the work done on 
actual construction. In addition to this he is to receive twenty (20) 
per cent, of whatever portion of the bridge Company's stock that 
Hurlburt has been able to retain in making his agreement with the 
capitalists. 

Draft an agreement between the two parties on the above 
basis and define carefully what each party is to do from start to 
finish. 

CASE NO. 6. 

William Simpson, a promoter, has developed a project for 
building a concrete dam across Arapahoe Creek, in Colorado, and 
irrigating thereby a large tract of land. He has organized a stock 
company in Colorado and called it the Arapahoe Irrigation and 
Development Company, the amount of the capital stock, for the 
purpose of organization only, having been fixed at ten thousand 
dollars ($10,000.00). 



SPECIFICATIONS AND CONTRACTS. 117 

To build the dam and to purchase about one-half of the land 
to be irrigated will require cash to the amount of two million, five 
hundred thousand dollars ($2,500,000.00), including a fair profit on 
the construction and purchase. He desires to expand his organiza- 
tion by increasing his capital stock to three million dollars 
($3,000,000.00), issuing bonds to that amount, and disposing of as 
many of these securities as is necessary to raise the two and one- 
half million dollars ($2,500,000.00) in cash. 

He takes the project to the New York bankers, Messrs. Fish & 
Robbins, who agree to undertake the underwriting of the bonds and 
to subscribe liberally themselves. The bonds are to bear five (5) 
per cent, interest, and the lowest figure at which they are to be sold 
is eighty-five cents (85c.) on the dollar. Fish & Robbins are to 
make a portion of their profit on the sale of the bonds at some higher 
figure than this. Simpson is to retain fifty-five (55) per cent, of 
the capital stock, and the remaining forty-five (45) per cent, is to 
be turned over to Fish & Robbins, who will part with as little as 
they can when getting the bonds underwritten, and will retain the 
balance as profit. 

Fish & Robbins also agree to advance money at six (6) per cent, 
interest from time to time to Simpson up to a limit of three hundred 
thousand dollars ($300,000.00), in order to enable him to carry on 
the work of construction and to make the first payments on lands 
purchased. For this loan they are to have a one-quarter interest in 
Simpson's profit on the purchase of land and construction of dam 
and irrigating ditches; for it is Simpson's intention to do all the 
construction himself and to purchase land that will lie under the 
ditch as cheaply as he can and turn it over to his Company at ten 
dollars ($10.00) per acre. This arrangement is to be well under- 
stood in advance by all parties interested in the project. To the 
owners of the remaining land lying under the ditch the Company 
will later on sell water privileges at as high a price as it can obtain. 
The Company will begin by farming some of its own lands, and by 
leasing others to farmers, with the intention of ultimately selling 
all its lands at a great profit and furnishing water for them at a 
fair price. 

The underwriters are to advance money on the bonds upon 
certificates of an engineer appointed by them to supervise the work, 
stating that certain lands have been purchased and paid for in full, 
and that actual work to the value of the amounts indicated has been 
done, including a proper profit for the Contractor. In other words. 



118 SPECIFICATIONS AND CONTRACTS. 

the subscribers to the bonds will advance money only for an equiva- 
lent cash expenditure for work or land. 

The entire engineering is to be done by and under the 
Engineer appointed by the underwriters; but the complete detailed 
plans and specifications are to be agreed to by Simpson, the Arapahoe 
Irrigation and Development Company, and the underwriters 
(through their Engineer and a special committee) before any money 
Is advanced for construction or purchase. 

Because of this arrangement Simpson will have to advance out 
of his own pocket whatever money is necessary for the preliminary 
engineering work and for the preparation of the plans and specifica- 
tions; but the amount of such expenditure is to be refunded to him 
just as soon as the final contract is entered into between the Com- 
pany and the underwriters. All engineering expenses are to be 
borne by the Company, and are to be considered a part of the 
construction expense. 

Simpson is to be paid by the Company for his work at the 
following rates: 

For the concrete foundations of dam below ordinary water- 
level, as determined in advance by the Engineer, including the 
necessary excavation and back-filling, twenty-two dollars ($22.00) 
per cubic yard. 

For the remaining concrete of the dam and for all other concrete 
work on the entire job, fourteen dollars ($14.00) per cubic yard. 

For cast-iron pipe in place, including the lead calking of the 
joints, five and two-tenths cents (5.2c.) per pound of pipe. 

For steel gates and other steel constructions in place, six cents 
(6.0c.) per pound. 

For timber of flumes, trestles, and other constructions in place, 
fifty-five dollars ($55.00) per M. feet B. M. 

For all earthwork, measured in excavation, excepting only the 
excavation for the base of the dam, thirty-three cents (33c.) per 
cubic yard, provided the haul does not exceed five hundred (500) 
feet. 

For overhaul of earthwork, one cent per cubic yard for each 
one hundred (100) feet of haul exceeding five hundred (500) feet. 

For all other materials or work not included in this list, actual 
cash cost, plus fifteen (15) per cent, for profit. 

Upon the preceding hypotheses the student will please draft 
the following papers: 

A. — Contract between Simpson and Fish & Robbins. 



SPECIFICATIONS AND CONTRACTS. 119 

B. — Contract between Simpson and the Arapahoe Irrigation and 
Development Company. 

C. — Contract between the Arapahoe Irrigation and Development 
Company and the underwriters. 

CASE NO. 7. 

Rufus Thompson, hydraulic engineer and contractor, of Minne- Promoter's Agree. 

ment 
apolis, Minn., has developed a project for building a complete system 

of water-supply and sewerage for the City of Hiawatha, Wis., and 
has entered into a provisional contract with that city, according to 
which it is to pay a certain lump sum for the sewerage system and 
certain hydrant rentals for city water, and is to give to the com- 
pany that Mr. Thompson has organized the exclusive privilege for 
thirty (30) years of supplying the citizens of the said city of 
Hiawatha with water. The construction of the entire system of 
water-works and sewerage is to be subject to the inspection and 
acceptance of the City Engineer of Hiawatha, who will act as Con- 
sulting Engineer on the work. 

A liberal estimate of the entire cash cost of the water-supply 
and sewerage systems proposed is one million, two hundred thousand 
dollars ($1,200,000.00). 

Mr. Thompson has already organized under the laws of the 
State of Wisconsin, for the sole purpose of materializing this project, 
the Hiawatha Water-Supply and Sewerage Company, the amount 
of the capital stock being fixed at first at twenty thousand dollars 
($20,000.00), with the intention of increasing it later to one million, 
five hundred thousand dollars ($1,500,000.00) and bonding the 
property to a like amount. 

Mr. Thompson has taken the project to the New York bankers, 
Solomon, Lowenstein & Co., who have agreed to underwrite the 
bonds to the amount of six hundred thousand dollars ($600,000.00) 
and to assume the underwriting of the remainder. The bonds are 
to be sold to Solomon, Lowenstein & Co., at eighty-two cents (82c.) 
on the dollar, and they are to obtain as much higher a price as they 
can when dealing with the other underwriters. Solomon, Lowenstein 
& Co. are to part with as little as possible of the capital stock of 
the Company when dealing with the other underwriters, in no case 
giving more than forty dollars ($40.00) in stock with each one 
hundred dollars ($100.00) in bonds; but with their own purchase of 
six hundred thousand dollars ($600,000.00) of bonds they are to 
receive three hundred thousand dollars ($300,000.00) in stock. 



120 SPECIFICATIONS AND CONTRACTS. 

After the entire bond issue has been subscribed, whatever stock 
has been left over is to be divided between Mr. Thompson and the 
bankers in the ratio of two-thirds (%) to the former and one-third 
(%) to the latter; but all the stock controlled by the said Thompson 
and the said bankers is to be pooled or held in trust for a term of 
ten (10) years, or until such a time as the Company has declared 
two (2) successive annual dividends of not less than six (6) per 
cent, on the entire capital stock. 

The trustees for the pool are to be Mr. Thompson and Mr. 
Lowenstein, and their headquarters as trustees are to be in the 
New York office of Solomon, Lowenstein & Co. 

Mr. Thompson is to be retained, if possible, as Chief Engineer 
of the enterprise, and is to be paid by the Company for his services 
and for those of his assistants in doing the entire engineering, 
inspection, and superintendence of construction five (5) per cent, 
of the total cost of the completed work, including right of way and 
all other legitimate items of expense. 

Should, however, the services of Mr. Thompson be objectionable 
to the underwriters, who may desire to appoint an engineer of their 
own, Mr. Thompson is not to be made the Chief Engineer, but in 
lieu of such an appointment is to receive from Solomon, Lowenstein 
& Co. either twenty-five thousand dollars ($25,000.00) in cash, or 
one hundred and twenty thousand dollars ($120,000.00) in the stock 
of the Company, at his option. 

Draft the contract between the promoter and the bankers upon 
the basis just indicated. 

Draft also a contract between the Company and Mr. Thompson 
for the engineering work. 

CASE NO. 8. 

Ocean Pier The Mexican Transcontinental Railway Company, a corporation 

of the Republic of Mexico, having headquarters at Mexico City, 
desires to let a contract for an ocean pier to be built in the harbor 
of Vera Cruz, Mexico, and has had prepared complete detail plans 
and specifications by its Consulting Engineers ready for both letting 
the contract and actual construction. The Consulting Engineers' 
estimated total cost of the finished structure, exclusive of the 
engineering fee, is two hundred and five thousand dollars 
($205,000.00). 

Bids have been called for, but owing to the almost constant 
presence of yellow fever in Vera Cruz none of the bidders was will- 



SPECIFICATIONS AND CONTRACTS. 121 

ing to name a lump sum for the work at all near the Engineers' 
■estimate. 

The lowest bidder was the Central Bridge Company, of Kansas 
City, Mo., who asked two hundred and sixty thousand dollars 
($260,000.00) for the work, but stated in their tender that they would 
ibe willing to undertake the contract at actual cash cost, plus twenty 
(20) per cent, for profit. 

A conference between the Consulting Engineers and the pro- 
prietors of the bridge company resulted in the following compro- 
mise, which was submitted to the President of the Railway Company 
and accepted by him: 

The Contractors are to furnish free of charge all the plant 
necessary to build the pier, and no allowance is to be made for 
either its use or for its deterioration while employed on the work; 
but the cost of the repairs to it during construction is to be con- 
sidered as a portion of the cost of the work, and is to be allowed 
for in the Engineers' monthly estimates. 

The Contractor is to be paid the actual cost of the entire work, 
including freight on materials and plant to Vera Cruz and freight 
on plant back to Kansas City, plus seventeen (17) per cent, on the 
said entire cost as profit, provided that the total amount of the said 
profit does not exceed thirty-two thousand dollars ($32,000.00). 

All items of labor, materials, transportation of men, materials, 
and plant between the United States and Vera Cruz, traveling 
expenses of the Contractors and of their salaried employees, insur- 
ance of every kind on men, plant, and materials that it is customary 
for American contractors to pay when doing similar work in 
foreign countries, stamps for documents, and taxes of all kinds 
shall be considered as legitimate expenses and shall be allowed by 
the Engineers. As the structure is located in the city, the workmen 
will have to find board and lodgings for themselves, unless the Con- 
tractors desire to house and board the men, which they are at 
liberty to do as their own private venture. 

The Company will not allow any sick or incapacitated men to be 
kept on the pay-roll, except by written permission of the Engineers 
for men who have been hurt on the work and who are willing to 
waive in writing all claims for damages, provided they are kept on 
the pay-roll until well enough to resume work. 

The Company will not pay for any medical attendance, medicine, 
or hospital charges for their Contractors or any of their employees; 
and on this account the Contractors are at liberty to enter into 



122 SPECIFICATIONS AND CONTRACTS. 

contract with all the workmen whom they send from the United 
States, or with European or American workmen engaged in Mexico 
to insure them against illness (in any way that seems best to the 
Contractors) by deducting a certain fixed percentage from all the= 
said workmen's wages; but this arrangement shall not apply in the 
case of Mexican workmen. 

The decision as to what is and what is not "Plant" is to be left 
entirely to the Engineers, the intent being to class as materials for 
the work everything that is likely to be used up or expended 
thereon, and to class as plant that part of the Contractors' working 
outfit that will be worth returning to the United States after the pier 
is finished. 

The Engineers' estimates are to be made in American money, 
but according to the laws of Mexico the Contractors' accounts must 
be kept in Mexican currency. The rate of exchange to be used by 
the Engineers in reducing Mexican to American currency shall be 
that ruling in the City of Mexico on the date of the estimate. 

The number of men employed and their salaries or wages shall 
be subject to the approval of the Engineers, who shall also convince 
themselves of the men's fitness for the work. 

The Engineers are to approve of the Contractors' plant before 
work is started, and shall order more to be supplied if subsequent 
developments show that it is necessary. 

The Engineers are to approve of all materials purchased by the 
Contractors for use on the work; and all expense bills are to be 
vouchered before being presented for approval. 

All pay-rolls are to be signed by the payees in the presence of 
a duly authorized representative of the Engineers, and two" copies 
thereof are to be made and attested by a notary. 

The Company shall not be held liable for the failure of the 
Contractors to comply with any of the Mexican laws, especially those 
relating to the stamping of documents. 

Owing to the high rates charged by the casualty insurance com- 
panies on work done in Mexico, the Company will itself insure the 
Contractors against accidents, but the latter must report all casual- 
ties immediately in writing to the Engineers and to the President of 
the Company. Minor accidents are to bs settled for as quickly as 
possible by the Contractors after consultation with the local repre- 
sentative of the Engineers and after receiving his approval; but nO' 
individual settlement exceeding two hundred dollars ($200.00) in. 



SPECIFICATIONS AND CONTRACTS. 123 

gold shall be made without special written permission from the 
Company. 

The Contractor is to provide a bond of fifty thousand dollars 
($50,000.00) gold; but the Company will allow the premium thereon 
to go into the Engineers' estimates as a part of the cost of the work. 

Draft a contract between the Company and the Contractors to 
meet all the preceding conditions and any other conditions that 
ought to be covered in such a document. 

CASE NO. 9. 
Assuming the conditions given in the last case, draft a contract Contract for Services 
between the Engineers, Walters & Hendricks, of Philadelphia, and 
the Railway Company so as to cover all the peculiar conditions of 
the case, as well as all the usual conditions included in contracts 
for doing engineering work in the United States. 

The payments to the Engineers are to be in American money 
as follows: 

For complete detailed plans and specifications, six thousand 
dollars ($6,000.00). 

For inspection of metal-work at mills and shops and for super- 
vising the loading of it on vessel and unloading it at Vera Cruz, 
also for the checking of shop-drawings, one dollar and fifty cents 
($1.50) per ton. 

For supervision of construction in the field, the actual total 
cash cost thereof to the Engineers, including all the traveling 
expenses to and fro, plus a lump sum of two thousand dollars 

($2,000.00). 

The pier to be designed is to be five hundred (500) feet long 
and seventy-five (75) feet wide. 

The deck is to consist of six (6) -inch creosoted planks supported 
by rolled I-beam stringers and cross-girders resting on screw-piles. 
There are to be two railroad tracks at the middle of the structure 
extending over its whole length. The live load per square foot of 
floor is to be taken at four hundred (400) pounds. 

CASE NO. 10. 

Joseph Mason, a railroad contractor of Tombstone, Ariz., has Syndicate 
conceived the project of building a railroad about ninety miles 
long to the Alvarado Mine, which has lately been opened and which 
shows great quantities of low-grade ore that would have to be trans- 
ported to Tombstone on the way to a smelter. The line projected 



124 SPECIFICATIONS AND CONTRACTS. 

by Mason's reconnaissance would pass near several high-grade mines 
and several large ranches, from all of which business for the railroad 
could be obtained. In addition to this there would probably be 
other business from new mines that would undoubtedly be opened 
and from other ranches that would be located close to the railroad. 

Mr. Mason has called in Adolf Macklin, a railroad engineer of 
Tombstone, and Arnold Potter, of Phoenix, Ariz., who has been 
successful in launching several large construction projects in that 
territory, to aid him in the materialization of the project. 

These three parties constitute what may be termed the 
"Promotion Syndicate." 

The arrangement between the members of the Syndicate is that 
Macklin is to survey the route, make plans, profile, estimate of 
cost, and complete specifications for letting the contract, and prepare 
a prospectus to submit to capitalists, all at the expense of Mason; 
but Macklin himself is to receive no salary. 

A stock company is then to be formed at Mason's expense, the 
amount of the capital stock at the outset being limited to ten thou- 
sand dollars ($10,000.00), consisting of one thousand (1,000) shares 
of ten dollars ($10.00) each. With the exception of one share for 
each of the other incorporators of the Company, Mason is to hold 
in his own name all of the stock until the project is about to be 
financed, when other arrangements will be made. 

After the Engineer's preliminary work is done, the members of 
the Syndicate are to determine a proper contract price per mile of 
road for building and equipping it complete, allowing an estimated 
profit of twenty (20) per cent.; and Mason is to take the contract 
for building the entire road at these figures after the necessary 
capital is raised. 

Macklin is to have the contract for all the engineering work 
from start to finish, is to pay every expense connected therewith, 
and is to receive as his gross compensation one thousand dollars 
($1,000.00) per mile of main line and five hundred dollars ($500.00) 
per mile for sidings and branch lines, provided that the project is 
materialized. 

If it is, Macklin is to refund to Mason out of the engineering 
fee one-half of the total cost of the entire work involved in making 
the surveys, plans, profiles, estimates, and prospectus. 

Potter is to make what commission he can out of the bankers. 
In dealing with the latter the Syndicate is to reserve for its members 
as much as possible of the capital stock, and what is saved is to h& 



SPECIFICATIONS AND CONTRACTS. 125 

divided among them on the basis of one-half (Vo) to Potter and 
one-quarter m,) each to Mason and Macklin. 

As soon as everything is ready to submit to bankers, Potter and 
Macklin are to make a trip at Mason's expense to some of the 
principal money centers of the country, and are to use every legiti- 
mate endeavor to float the enterprise, and are to continue their 
work until either success is attained or the expenses of their trip 
amount to six thousand dollars ($6,000.00), after which it is to be 
optional with Mason as to whether they shall continue their efforts 
or abandon the enterprise. If the latter be successful. Potter and 
Macklin must each refund to Mason one-third (Vs) of the total 
amount advanced by the latter for organizing the Company and 
financing the scheme. 

Draft a contract among the three members of the Syndicate 
upon the preceding basis. 

CASE NO. 11. 

The Syndicate mentioned in Case No. 10 has been successful Guaranty 
i^ its efforts. Macklin found that twenty-four thousand dollars 
($24,000.00) per mile of main line, fifteen thousand dollars 
($15,000.00) per mile of branch line, and nine thousand dollars 
($9,000.00) per mile of siding would cover the entire cost of 
construction and equipment, and would allow a probable profit of 
twenty (20) per cent; and Mason agreed to accept the contract at 
these rates. 

In round figures the number of miles of main line proved to 
be ninety-two (92), the number of miles of branch lines nineteen 
(19), and the number of miles of sidings and terminal tracks 
ten (10). 

The Tombstone Alvarado Railway Company was organized in 
Arizona as agreed upon, then Potter and Macklin went to New York, 
vvhere, after great efforts, they succeeded in inducing the banking 
firm of Lieberman & Co. to underwrite the bonds. It was decided 
between the Bankers and the Syndicate to issue five (5) per cent, 
mortgage bonds to the amount of three and a half million dollars 
($3,500,000.00) and stock to a like amount. The Bankers were to 
take the bonds at eighty (80) cents on the dollar and were to 
receive sixty (60) per cent, of the capital stock. 

They were to pay Potter a commission of ten (10) per cent, of 
their net profit on the sale of the bonds, but were not to give him 
.any portion of their share of the stock. 



126 



SPECIFICATIONS AND CONTRACTS. 



Bond 



Copartnership 



The Bankers also agreed to advance money to Mason from time 
to time up to an amount of two hundred thousand dollars 
($200,000.00) to enable him to carry on the construction; because 
as usual the proceeds of the sale of the bonds were not available 
for payment to the Contractor until after certain amounts of work 
were finished and certified to by both the Company's Engineer and 
a supervising engineer appointed by the Bankers to see that the 
money be properly expended. For this accommodation the Bankers 
are to receive five (5) per cent, interest on the money advanced and 
ten (10) per cent, of the Contractor's net profit on the entire work, 
as shown by his books, which are always to be open to the inspec- 
tion of the Bankers' representatives. 

Draft a contract between the Bankers on the one hand and 
the Railway Company and the members of the Syndicate on the 
other, so as to embody all the pertinent conditions given in this case 
and in the preceding one. 

Draft also the necessary contract between Mason, the Contractor, 
and the Tombstone Alvarado Railway Company, making the said 
Contractor give the Company a surety company bond to the amount 
of two hundred thousand dollars ($200,000.00), guaranteeing the 
faithful performance of the work. 

CASE NO. 12. 

Referring to the last "Case," draft a contract between the con- 
tractor, Joseph Mason, and the North American Surety Company 
of New York City for the two hundred thousand dollar ($200,000.00) 
bond required. 

N. B. — It would be well for the student, before attempting this,, 
to procure blank forms of bonds from two or three surety 
companies. 

CASE NO. 13. 

• Two engineering firms of Pittsburg, Pa. — viz., Davis & Wilkin- 
son, who make a specialty of electric railways, and Harris & 
Elmore, who make a specialty of bridgework — have concluded to- 
join forces to do the entire engineering work on an important elec- 
tric railway that is to be built from Pittsburg to a neighboring city, 
and that is to include an expensive bridge over the Monongahela. 
River, besides a number of smaller bridges on the line. 

Harris & Elmore are to attend to all the bridgework and Davis 
& Wilkinson to the balance of the engineering; but in order to 
save duplicating field parties, D. & W.'s employees are to supervise 



SPECIFICATIONS AND CONTRACTS. 127 

the erection of the small bridses along the line at H. & E.'s 
expense. 

The combined firms are to receive from the Railroad Company 
lor their services a gross fee of five (5) per cent, of the total cost 
of construction, which fee is to be divided between the two firms 
according to the ratio that the cost of work done under the juris- 
diction of each bears to the grand total cost of construction. 

All payments on account to the combination are to be divided 
by these ratios, using the estimated total costs, irrespective of 
whether the said payments on account relate to bridgework or to 
other work. 

It is understood that this combination of interests applies to 
this particular piece of construction only, and that the two firms 
are at liberty to do any other work they choose at the same time 
that the joint work is in progress, provided, however, that neither 
firm permits other business to interfere with the proper prosecution 
of the said joint work. 

Draft the proper contract between the two firms. 

CASE NO. 14. 

The Government of British Columbia is about to call for bids Copartnership 
upon the substructure of a large bridge to be built across the Fraser 
River. Armitage & Morris are an old-established firm of con- 
tractors who have executed great constructions in the Province of 
British Columbia, and have become wealthy thereby; but they have 
had no experience in sinking piers by open-dredging or in driving 
long piles by means of the water-jet. On this account they desire 
to associate with them for this special contract Mr. Beaupere, an 
engineer of experience in the contracting part of bridge construc- 
tion, under the firm name Armitage, Morris, & Beaupere. 

They agree to pay him a salary of two hundred dollars 
($200.00) per month from start to finish and to give him besides 
a ten (10) per cent, interest in the net profits on the contract, 
providing that there are any net profits, his monthly salary being 
counted as a part of the expense of construction. 

But if there are no net profits, Beaupere is not to stand any 
share of the loss on the contract. 

Armitage & Morris are to turn in all the plant they have that 
can be used to advantage on the work, and are to purchase any 
additional plant that may prove to be necessary. When the con- 
tract is fulfilled, whatever remains of the said extra plant is to be 



128 SPECIFICATIONS AND CONTRACTS. 

appraised by a party or parties agreed upon by the principals, and 
the value thereof thus determined is to be added to the figured 
profits on the work, the first cost of the new plant having been com- 
puted as a part of the cost of construction. 

If, before the substructure of the bridge is completed, the 
Government decides to give the firm the contract for building the 
approaches to the bridge or any portion of them, Beaupere is to 
share in the profits on this additional work; but if the said approach 
work is awarded the firm after the substructure is finished and 
accepted by the Government's engineers, Beaupere is not to have 
any interest in the additional contract. 

Should at any time Beaupere desire to drop out of the combina- 
tion, he may do so by giving the other partners ten (10) days' notice, 
in which case he is to receive his salary in full to the date of his 
leaving, plus cash to the amount of his share of the estimated profit 
en the job up to that time, provided that the parties in interest can 
agree as to what is a proper estimate of the amount of the said 
profit. If they cannot so agree, the division of the profits is to be 
postponed until the completion of the entire work contracted for at 
the time of the dissolution of the special partnership, the amount 
of profit at the said time being prorated from the actual total 
profit in the proportion that the value of the entire work done 
up to the date of the Government Engineer's last monthly estimate 
bears to the total value of the construction as shown by his final 
estimate. 

But should at any time Armitage & Morris desire to sever the 
special partnership, or in other words dispense with Beaupere's 
assistance, they can do so by giving him ten (10) days' notice and 
paying him an amount to be agreed upon by them all as a proper 
compensation in full. Failing such an agreement, Beaupere is to be 
paid his salary in full to the date of the sundering of relations; 
and after the contract is completed he is to receive his full share of 
the actual net profits, plus one-half of the remaining salary that he 
would have earned had he remained till the finishing cf the work, 
the said salary being counted as cost of construction when the net 
profits are being computed. 

In the event of the death of Beaupere before the contract is 
completed his salary shall immediately cease, and his estate shall 
be entitled to receive at once his share of the estimated profits up 
to the date of the last monthly estimate; and after the contract is 
finished one-half of the balance of his share of the actual total profit. 



SPECIFICATIONS AND CONTRACTS. 129 

If an agreement cannot be reached as to the proper amount of esti- 
mated profit at the time of Beaupere's death, the settlement shall be 
postponed until after the entire work is finished and paid for; and 
in this case six (6) per cent, interest shall be allowed from the 
date of said death till the time of final settlement upon that portion 
of the profits finallj^ determined to have been due at the said date 
of death. 

In case of the death of either Armitage or Morris before the com- 
pletion of the work, the executors or heirs of the deceased shall 
supply a competent man at their expense to complete the personal 
work of the deceased; and in consequence the division of profits 
of the special partnership will not be affected by such a demise. 

If both Armitage and Morris should die before the completion 
of the work, their executors or heirs must supply at their expense 
competent substitutes to do the personal work of the deceased; and 
at the time of final settlement of the affairs of the special partner- 
ship Beaupere shall receive twenty (20) instead of ten (10) per 
cent, of the total net profits, the increase being allowed as compen- 
sation for the extra work and responsibility devolving upon him 
because of the death of the two partners. 

Draft a contract between the old firm and Beaupere embodying 
all the preceding conditions and establishing the new temporary 
partnership. 



Notes on the Law of Contracts. 



An Appendix to Waddell's Specifications and Contracts. 
By John Cassan Wait, M. C. E., LL. B. 



Introduction. — Dr. Waddell has presented in the foregoing pages 
a practical synopsis of the subject of Engineering Specifications and 
Contracts, which, if carefully studied and applied to the cases pre- 
sented, will, I believe, result in very great benefit to students of 
engineering and architecture. He has first taken up the subject of 
specifications, they being more directly the work of the engineer 
or architect, being the subject-matter of the contract and therefore 
reasonably requiring to be created, developed and described before 
being made the subject of a contract. The specifications are also 
more within the purview and understanding of the student of engi- 
neering or architecture than is the contract, and they are therefore 
properly the subject of prior study and practice. 

SPECIFICATIONS. 

1. Contract Embodies Specifications and Plans. — The specifica- 
tions are not strictly an independent document to be distinguished 
from the contract, but they are a component part of the contract, 
the part descriptive of the structure and of the labor and materials 
comprising it. If the specifications and plans are independent 
printed or written documents, then they should either be fastened 
to or bound with the contract, or they should be referred to in the 
contract and identified either by description or by the signature 
of the parties. The plans are mere graphic specifications, an abbre- 
viated form of illustrating and specifying dimensions and details 
of construction. The specifications should embody the plans, and 
they together should contain a full and complete description of the 
materials and work to be furnished and of the structure to be 
erected. They should contain all the dimensions, instructions and 



132 SPECIFICATIONS AND CONTRACTS. 

directions necessary to secure the result to be accomplished. The- 
description of materials should be made by such tests and com- 
parisons that if two contractors have work upon adjoining sections 
with but an imaginary plane between them, the section engineers 
respectively would and must arrive at the same result, whether it 
be one of measurement or one of classification. 

2. Contents of Specifications. — The specifications and plans 
should definitely describe the site of the structure, the crude stock 
and the process of manufacture of the materials and the finished 
materials of construction, not only positively as to good properties 
that they shall possess, but negatively, naming defects that they 
shall not contain. They should provide for inspection and tests at 
the mills and shops and for field inspection during erection, and 
every class of work should be described in sufficient detail to enable 
the builder to erect and complete the structure without further direc- 
tion or explanation from the engineer or superintendent. Specifica- 
tions and plans so prepared would be ideal, and every student of 
engineering should at least endeavor to make his specifications and 
plans ideal. 

3. What are the Specifications. — The specifications may consist 
of a printed book with the signature of the architect and engineer 
and the approval of numerous officials of a company or of a govern- 
ment, or it may consist merely of a letter written, or of a mere 
sketch which describes the materials and methods to be employed. 
Drawings exhibited to a contractor when a contract is signed, if 
referred to in the contract so as to be identified, become a part of 
the contract; likewise, an act of the legislature or of Congress may 
be made a part of a contract by reference. So plans, profiles and 
drawings may become a part of an act of the legislature, but if the 
act itself does not refer to them they cannot be thereafter used in 
construing the act. 

Frequently specifications or plans are referred to as signed or 
attached, when in fact they have not been signed or attached. In 
such cases oral evidence may be introduced to show what specifica- 
tions were intended. If they can be identified, then they are in 
legal effect incorporated into the contract. 

4. Specifications to 'be Created. — Contracts are sometimes drawn 
requiring structures to be built according to general plans and speci- 
fications, with the provision that the work shall be erected and 
completed in accordance with drawings, directions and instructions 
to be prepared or furnished by the architect or engineer. Such 
practice frequently results in controversy and disagreements be- 



NOTES ON THE LAW OF CONTRACTS. 133 

tween the engineer and the contractor, and it may well be doubted 
if the contractor would be bound to execute work in accordance 
with plans and specifications that differed materially from those 
furnished to the contractor when he entered into the contract, and 
which materially changed the cost of the work. Ordinances and 
regulations referred to in a contract become a part thereof, and 
will hold, not only as to the manner in which the work shall be 
done, but also as to how it shall be paid for. 

5. Limits of the Work to be Defined. — Specifications should' 
show the limits and boundaries of work, not only as to their area 
but as to the depth of the foundations and sub-structures. Much 
litigation would be avoided if provision was made, either by unit 
measure or otherwise, to compensate a contractor for the additional 
and increased depth that excavations and foundations are required 
to be carried to to secure good foundations. Frequently plans show 
a depth to which foundations shall be carried, and the specifications- 
provide that the excavation shall be carried and the foundation 
built to such depth as shall be satisfactory to the engineer or archi- 
tect. If the sub-soil be found poor, the engineer and architect shall 
take it upon themselves to require the foundations to be sunk to 
greater depth, to the great loss and damage of the contractor or 
builder. Such practice leads to unhappiness and litigation, and 
could easily be avoided to the advantage of both the owner and 
the contractor by limiting the extent of the work vertically as well 
as horizontally. The limits of work are defined or shown upon the 
plans by boundary or dividing lines; whatever is required outside- 
or beyond such limits is extra work, for which additional compensa- 
tion may be claimed by the contractor. 

6. Working Drawings at Variance wiiJi General Plans. — When 
bids have been made and accepted on original plans and specifica- 
tions, and the working drawings afterwards furnished vary from 
the original plans, involving much additional work, the contractor 
may refuse to continue the work at the contract price. That he 
should do, notwithstanding the owner employs others to do the 
work at an increased compensation, for the contractor may recover 
for the work he has done if the variance between the original and 
the working drawings be material. If, however, the contractor per- 
forms the work without protest, he very likely will be held to have 
done the work under his contract and at the contract price or prices. 

7. Conflict of Specifications and Plans with Express Terms of 
the Contract. — If the terms of the contract do not agree with the- 
specifications, they are said to be in conflict, and the question is,. 



134 SPECIFICATIONS AND CONTRACTS. 

"What was the intention of the parties as set forth in the instru- 
ment taken as a whole?" The whole question is, "What was the 
intention of the parties?" That must be determined from a con- 
sideration of the entire contract, including the covenants, the speci- 
fications and the plans. If the intention he legal, it will control, 
i.e., if not incompatible with the rules and maxims of the law, the 
mutual intention will prevail, and this is "the polar star" in the 
interpretation of all contracts. To arrive at the intention the Court 
will, so far as possible, put itself in the position and situation of 
the parties at the time the contract was executed. The conduct of 
the parties and the practical interpretation which they have them- 
selves given to the terms of the contract, will have its influence, 
if the intention be not clear as expressed. If the contract and speci- 
fications do not agree with the working drawings and the work 
has been done under the direction of the engineer, according to a 
plan, model or sample furnished, the practical construction which 
the parties have adopted will prevail over the literal meaning of 
the contract and specifications. 

8. Contract the Superior- Instrument. — ^Other things being equal, 
the contract, being the more solemn instrument, is usually held to 
prevail over the specifications. This is because the contract is 
usually the more ceremonious undertaking and it usually defines 
the obligations assumed by the parties. It is the culminating act 
by which the parties bind themselves, and it is less often subject 
to alteration. On the other hand, the specifications and plans are 
descriptive of the work and the manner in which it is to be per- 
formed, and they are frequently subject to changes and alterations 
as new conditions and changed circumstances attending the perform- 
ance of the work may arise. There might be reasons why either 
the specifications or the plans should prevail one over the other, 
depending upon the character of the confiict. The contract or the 
specifications would prevail over the plans only because and for 
the reason that the circumstances attending any case would lead 
the Court to give greater weight to the contract or specifications, 
because it more clearly and fairly expressed the intention of the 
parties. If there were any attending circumstances that indicated 
with sufficient certainty that the parties intended that the plans 
should control, the Court would be bound so to interpret the inten- 
tion of the parties; thus the plans, the proposal, the specifications 
or the contract may prevail. 

9. All Parts will te Reconciled if Possihte. — If the Court can 
find a construction or interpretation that will harmonize with both. 



NOTES ON THE LAW OP CONTRACTS. 135 

or all of the several parts of the contract, viz., the plans, specifica- 
tions and covenants, it will adopt that meaning. The meaning which 
is consistent with all parts. Therefore, when specifications required 
walls to be vaulted, and the plans showed them to be 16 inches in 
width without vaulting or spaces, it was held that the walls were 
to be 16 inches including the vaulting, and that evidence would 
not be admitted to explain the contract. So, when specifications 
required walls to be plastered with K. & Co.'s cement under the 
direction of the Superintendent of K. & Co., and the specifications 
also required that cement and sand should be mixed in equal parts, 
it was held that effect should be given to each requirement by hold- 
ing that the Superintendent's powers extended to the laying of the 
cement plaster and that the contractor was bound by the propor- 
tions named in the specifications and that the contractor could not 
change the proportions even though the Superintendent did con- 
sent to it. 

10. Construction against Party using Language, — Another point 
of law to be considered in the interpretation of clauses which are 
in conflict, is that the courts will usually construe the terms most 
strongly against the party who first used them or who prepared 
the contract. This rule of construction is generally applied, except 
where the government or the public are the parties, in which case 
it is usually held that the meaning will be adopted which is most 
favorable to the government or public, the courts holding that the 
interests of the public should be protected, because there is, pre- 
sumably, nobody who has the interest in public welfare that he has 
in his own. 

11. Written and Printed Matter, and Punctuation. — If in the 
contract or specifications the written portion of the contract is 
repugnant to the printed part, it is the general rule that the printed 
part must yield to the written, as the latter is presumed to be de- 
liberately expressed in the written portion of the contract and sub- 
sequent to the printed portion. To have any part of a contract 
control another part, it must be inconsistent or opposed to it. If 
the two parts can be reconciled, the Court is bound to do so. There- 
fore, when the printed part provided that payments should be made 
on the architect's certificate, and the written part provided that the 
payments should be made at fixed stages in the progress of the 
work and at a stated time after its completion, it was held that 
there was no inconsistency between them and that neither part 
would be rendered inoperative. In interpreting contracts or legal 
documents, punctuation has very little weight. The want of a punc- 



136 SPECIFICATIONS AND CONTRACTS. 

tuation mark or the misplacing of one will not be allowed to vitiate 
the contract or destroy its meaning any more than bad grammar 
or bad spelling. 

12. Work According to Speciflcations or as a First-Glass Job. — 
When work is to be performed in a good and thoroughly work- 
manlike manner and at the same time according to specifications 
and plans, the question arises as to whether the contractor is ex- 
cused from making a first-class job if he completes his contract 
in accordance with the specifications and plans. An undertaking 
to construct a piece of work is an undertaking to do it well and 
in a workmanlike manner, even though it be not expressly stipu- 
lated; but if the owner or his architect or engineer specifies mate- 
rials, workmanship or the manner in which the structure is to be 
erected, and if after completion it proves to be defective and does 
not fulfill the purposes for which it was intended, then the fault 
lies with and the loss falls upon the owner. This was so held when 
the owner required a contractor to follow his directions in making 
an experimental article from a pattern furnished. The owner was 
required to pay, even though the article was not fit for the uses 
contemplated. 

13. Implied Warranty of Work. — Whoever undertakes to erect 
a structure, impliedly warrants that he is reasonably skilful in his 
trade or calling and that the materials he uses should be suitable 
for the purposes for which they are used. A builder has been held 
liable for a defective chimney which would not carry off the smoke, 
for which it was designed. The fact that the price paid was grossly 
inadequate does not excuse the builder from fulfilling his under- 
taking to do a thoroughly workmanlike job. When one has agreed 
to execute a job in a plain and workmanlike manner, or in a man- 
ner to be determined by the engineer, it has been held that he is 
bound to show that he executed the work in a plain and workman- 
like manner. The courts sometimes hold that the provision that 
the work should be substantial and workmanlike was an additional 
safeguard to insure a satisfactory completion of the work; that 
while substantial and workmanlike did not imply a perfect job, 
yet it was a question of fact for the jury to determine if the work 
complied with the contract, and was not a question for the court. 
It has been held that the work should be perfectly done for the 
character of the job contemplated. It has also been held that the 
■ expression cannot be overcome by showing the custom or usage 
which allowed the use of inferior materials or unskilful work. 

14. Owner Warrants Sufficiency of Plans, When. — ^Work done 



NOTES ON THE LAW OF CONTRACTS. 137 

strictly according to plans and specifications furnished and adopted 
by the owner is done and completed at the risk of the owner, unless 
the contractor has either expressly or impliedly undertaken to war- 
rant the sufficiency and stability of the work. When work has been 
completed in accordance with plans and specifications and under 
the direction and to the satisfaction of the architect, and the struc- 
ture collapses, the contractor is not liable if he has furnished skilled 
labor and good materials and if the failure was due to defective and 
insufficient plans. The same has been held of a machine that would 
not work when completed; of a building that settled and cracked 
because the footing stones were too small as specified by the archi- 
tect; and where an arch fell because it would not sustain the load 
imposed upon it. The contractor, to escape liability, must have 
completed his work in a workmanlike manner and must have em- 
ployed good materials and must have done his work in a thorough 
and substantial manner, and he must prove that the structure failed 
because of inherent defects of the plans and specifications. 

15. Contract Entire, for a Completed Structure. — Some courts 
have distinguished those cases in which the builder is merely to 
build according to plans and specifications, from those cases in which 
he is completely to furnish and deliver the structure ready for 
use. Some of the courts held that if a contractor has undertaken 
to deliver a structure complete, his undertaking is a warranty that 
the plans and specifications are sufficient, and that by assuming 
the obligation to complete and deliver a finished structure, the 
contractor approved and adopted the plans and specifications fur- 
jiished by the owner. This has been so held where a building settled 
owing to latent conditions of the soil. The courts held that the 
contractor having agreed completely to finish the building, fit for 
use and occupation, he was bound by his covenant. In another 
case, where the contractor was to construct a well for a certain 
sum, according to specifications which called for a curb of certain 
shape and size, to be made of timber and planking of a prescribed 
size and quantity, it was held that the contractor could not recover 
for work and materials lost by the caving of the well before com- 
pletion, notwithstanding that the failure was due to weakness of the 
curb specified. When the contractor warrants that the structure 
will answer the purposes for which it was intended, or that the 
machine will work, he will not be relieved from such warranty 
because the plans or specifications are defective. 

16. Undertaking to Build Implies Understanding of Plans, etc. 
— An undertaking to erect a structure according to certain plans 



138 SPECIFICATIONS AND CONTRACTS. 

and specifications implies an understanding of them on the part 
of the contractor or builder, and the law will not permit him to 
escape liability for the failure of the structure on the ground that 
he exercised ordinary care and skill to understand and carry out 
the plans and specifications. If the contractor departs from the 
working drawings which are part of the contract, he becomes a 
warrantor of the strength and safety of the structure, unless the 
material deviations from the plans are made with consent or by 
order of the owner. 

17. Specifications against Engineer's Decision and Instruction. 
— It is usually provided that work, labor and materials shall con- 
form strictly to the specifications and plans, and also that the direc- 
tions and instructions of the engineer, as given from time to time 
during the progress of the work, shall be strictly followed, and 
sometimes in addition thereto that the work shall conform to the 
working drawings and directions given from time to time by the 
engineer or architect, and that the whole structure shall be com- 
pleted to the acceptance and satisfaction of the engineer. Some- 
times the specifications and plans are prepared at the general offices 
of the railroad, municipality or company, and the resident engineer 
or engineer in charge may not agree that the same properly fit 
or satisfy the conditions or circumstances arising during construc- 
tion, and the latter establishes his own personal standard of excel- 
lence to which the work shall conform, and the question is, Which 
shall prevail — the specifications or the resident engineer? In this 
case we return again to the polar star in the exposition of instru- 
ments, and determine, if possible, what was the intention of the 
parties. 

18. Engineer's Powers Defined in Contract. — The engineer's 
powers and duties are limited to those which the contract expressly 
confers or may be fairly implied from its terms. He cannot go 
beyond or behind it. His decision must relate exclusively to mat- 
ters embraced within the agreement to submit to his directions and 
determinations. His decisions are conclusive only with regard ta 
work described in the contract and specifications. He must measure 
and classify the work and materials according to the rules and tests 
named by the parties in the specifications. Even though he be sole 
judge of the work, its quality and character, he cannot accept what 
the contract forbids nor demand what the contract does not re- 
quire. He must accept those things which meet the requirements 
of the specifications, and work and materials may not be accepted 
because they are as good or as suitable for the purpose without 



NOTES ON THE LAW OF CONTRACTS. 139 

the consent or acquiescence of the parties themselves. Neither the 
owner nor the contractor will be bound by the acceptance of the 
engineer, unless the work and materials conform to the contract 
requirements, even if they be accepted in good faith or under an 
erroneous view of the contract. So far as the contract and speci- 
fications show an evident intention to limit the engineer's discre- 
tion and to fix or name the quality of the work, so far must he 
follow the specifications. 

19. Engineer's Duty to Follow Specifications. — The first duty 
of an engineer is to require that the work conform to the specifica- 
tions. That done, he may exercise his discretion and good judg- 
ment. He may not accept a brick house for one of marble, even 
though the brick house is substantially as good or even better than 
the one of marble. He cannot accept bluestone for brownstone, 
nor a 12-inch wall for a 16-inch wall, nor Bessemer steel for open- 
hearth steel. When the specifications require mortar to be of equal 
parts of cement and sand, a different mixture cannot be authorized 
by the engineer. When work and materials are required to be 
strictly according to specifications, and the engineer is also to ac- 
cept and approve the work finally, and the contractor has com- 
pleted a structure strictly in accordance with the plans and specifica- 
tions, must the engineer approve and accept? In this, as in all 
cases of conflict, it is the question of intention. To determine that 
the court will consider every part of the contract and it will put 
itself in the shoes of the parties, consider their relations and the 
conditions and circumstances under which the contract was made 
and under which the work had to be done. The court will con- 
sider the interpretation which the parties themselves have adopted. 
Generally, when work is to be completed according to specifications 
and to the acceptance and satisfaction of the engineer, and the 
specifications describe the work and materials in detail, it is suf- 
ficient to complete the work as specified. Such a performance 
should be to the reasonable satisfaction and acceptance of the 
engineer. 

20. Engineer's Acceptance Additional Safeguard. — This has 
been so held, but the courts have sometimes held that the require- 
ments that the work should be to the acceptance and satisfaction 
of the engineer was an additional safeguard. When the engineer's 
decision is final and the engineer has signified his acceptance and 
approval, it will bind the owner even though there has not been 
a material compliance with the specifications; but the engineer must 
have acted in good faith. If work has been completed according 



140 SPECIFICATIONS AND CONTRACTS. 

to the specifications and plans and the engineer refuses his accept- 
ance and approval, it is, to say the least, evidence of bad faith. 
If the working drawings furnished by the engineer differ from the 
original plans and specifications in material respects, and the con- 
tractor has agreed to perform the work according to detail draw- 
ings to be prepared and directions to be given by the engineer, he 
can be required to do so and without extra remuneration; but it 
is submitled that the working drawings and directions must con- 
form reasonably with the original plans and specifications. 

21. Work and Materials Rejected 'by Engineer. — Frequently the 
specifications require that materials and work may be rejected by 
the engineer and inspector, if, in their opinion, they do not conform 
strictly to the specifications. If work and materials 'do conform 
to the specifications and are rejected by the inspectors or engineers, 
the question arises as to which will control and to what extent 
the power of the engineer in rejecting or accepting materials will 
bind the contractor or the owner. If the engineer has been given 
the full power of an arbitrator or an umpire, and his conclusion 
is made final and conclusive upon the parties, it is well settled in 
England and in many of the United States that his decision will 
control. If he accept inferior or defective materials, the owner 
must pay for them, and if he reject good and substantial materials 
the contractor must supply other better materials. This rule re- 
quires that the contractor shall secure the acceptance of materials 
before using the same. If materials are rejected the engineer must 
be specific in describing the defects, so that the contractor can 
remedy them. A notice to a contractor that certain parts of a struc- 
ture are "worthless and dangerous, not fit for use, liable to cause 
damage, and their construction in direct violation of the contract," 
without specification of the nature of the alleged defects, has been 
held insufficient to require a contractor to replace such parts or to 
defeat his right to recovery. 

When a certain kind of stone was specified and was used upon 
the work and it was afterwards found defective, the contractor 
recovered the contract price, it not being shown that the defect 
was in the workmanship. The same has been held of sand used 
which was particularly described and designated. If a builder give 
notice of the poor quality of materials, and the work is carriea 
on under the eyes of the owner, he may not refuse to pay for the 
work because the structure is so affected by the weather as to 
prove worthless. The use of brick made of inferior clay, in good 
faith, by the contractor, the defective condition not being discov- 



NOTES ON THE LAW OF CONTRACTS. 141 

ered by careful inspection, but developing only after exposure 
to the weather, will not defeat the contractor's right to recover. 
So, too, when the owner specifies certain brands of materials or 
a manufactured product by the trade name, and then arbitrarily 
confines the contractor to such materials, the owner takes the respon- 
sibility of any inherent defects which may develop subsequently and 
which are not discovered under ordinary inspection. 

22, Defective Worlz and Materials Accepted by Engineers. — 
If engineers or inspectors are clothed with authority to construe 
and determine the meaning of the specifications and the plans, and 
have the power to accept or reject materials and workmanship, and 
the structure has been accepted and the contract fully executed, 
and no fraud has been practiced by the contractor, it is well settled 
that the owner or company can have no recovery against the con- 
tractor for defective work or materials. It was held when excava- 
tions and foundations were to be made for a structure under the 
instruction and to the approval of an architect, that the contract 
was performed whether the work had been done in conformity to 
the drawings or not. It was held that when machinery for a steam- 
boat was required to be of the best material throughout and of 
first-class workmanship, subject to the inspection of the company's 
superintendent, who had the right to reject anything not equal to 
the requirements of the contract, and every facility was afforded 
the inspector to inspect the work and materials, that the company 
could not recover from the contractor for injuries resulting from 
the failure of the steamboat. Likewise it has been held that a con- 
tract to construct a wharf according to plans and specifications fur- 
nished by the company, who saw the work during its progress and 
until completion, that no recovery could be had from the contractor 
because the structure was defective and injuries resulted. The 
same has been held of a bridge erected and completed pursuant to 
the directions of an engineer in substantial compliance with the 
plans. 

23. Acceptance of Structure. — The above cases are cases where 
the decision of the engineer or architect had been made binding upon 
the parties to the contract. It has been held that, if such ]:e not 
the case, his acceptance of inferior materials will not bind the 
owner nor relieve the contractor from performing his agreement 
in strict compliance with the contract. It has also been held that 
the work must have been accepted in order to conclude the owner; 
that the payment of progress certificates did not constitute a waiver 
of defects in quality which were not apparent from inspection. 



142 SPECIFICATIONS AND CONTRACTS. 

If the contractor be subject to the direction of the engineer in 
charge and his decision is made final and conclusive, and the 
quality of materials furnished and the manner of doing the work 
are specified, the contractor is not responsible for defects of 
the work as a whole, if he has complied with the architect's direc- 
tion. The engineer's failure, however, to object when work does 
not conform to the contract and specifications, does not show acqui- 
escence in such work or in the use of parts or members of a 
structure which are smaller or of different dimensions than those 
specified in the contract. 

When it is provided that the materials shall be strictly in 
accordance with the plans and specifications, and that a person 
appointed shall inspect and accept such materials as he may deem 
proper, it has been held that a difference of opinion between the con- 
tractor and the inspector, as to whether or not the materials con- 
formed to the plans and specifications, was an incident contemplated 
by the terms of the contract, and that the rejection of materials in. 
good faith by the inspector gave no ground for damages to the con- 
tractor, even though the rejected material did conform to the specifi- 
cations and plans. 

24. Contract must be Construed as a Whole. — Whether or not 
the specifications or the determination of the engineer shall control 
must be determined from the whole contract, and the stipulations 
granting such powers must be read in the light of the rest of the 
contract, and the powers of the engineer must be exercised in accord- 
ance with the understanding of the parties as outlined in the con- 
tract. Much is often left to the engineer's discretion and judg- 
ment, but so far as the contract and specifications show an evident 
intention to limit the engineer's discretion and to fix the quality 
and character of the work and its execution, so far will the engineer 
be bound to follow the specifications and the plans. His duty is 
first to determine the conformity of things with the specifications 
and the requirements of the contract, and as to the rest, to consult 
his own discretion and good judgment. He must decide whether 
work has been executed in a manner and to a degree of perfection 
promised or demanded in the contract. He cannot dispense with 
the performance of a substantial part of the work; he may decide 
whether work has been executed in a workmanlike manner, if the 
materials are the kind required; but it cannot be contended that the 
engineer can accept something unlike that which is called for, even 
though it is substantially built and for all practical purposes as 



NOTES ON THE LAW OF CONTRACTS. 143 

good or even better than the structure specified in the contract. 
However conclusive the engineer's decision may be made, or how- 
ever closely the contractor is to follow his instructions in all things, 
that will not justify a departure from the express terms of the con- 
tract. An acceptance by the engineer of a different class of work 
or of inferior materials will not bind the owner, nor will it relieve 
the contractor from his agreement to perform according to plans 
and specifications. 

25. Conflict Between Specifications and the Judgment of the 
Contractor. — Frequently the contractor is made responsible for the 
maintenance and repair of work and for its stability, and at the 
same time he is also required to follow the specifications and plans. 
The question arises as to how far the contractor must follow the 
plans and specifications when in his best judgment the work will 
not be stable or meet the requirements as to maintenance, strength 
and durability. Here, as in other cases, it is a question of intention. 
The courts will look to the instruments to determine the intent. 
In such cases the question is, "Does the contractor warrant that the 
specifications and plans are sufficient to effect such a result as he 
will be able and willing to maintain for the purposes intended, and 
for the period named?" Suppose, for instance, a contractor under- 
takes to build a bridge in accordance with the specifications, plans 
and directions of an engineer, and the engineer directs what founda- 
tions shall be built, under the protest of the contractor "that said 
foundations are insuflSicient and will not support the structure." 
Suppose the foundations are built according to the orders and direc- 
tions of the engineer, and the structure fails. Is the contractor 
liable to reconstruct the foundations and the structure, or will the 
owner be required to pay for the work done in the manner required? 
Such a case is usually determined by deciding first if the contractor 
was to build and furnish a completed structure, or only to furnish 
work and materials for the structure. The courts distinguish an 
undertaking to provide and furnish a complete structure from one to 
furnish work and materials at a unit measure, or those cases where 
different kinds of work are parceled out to several different con- 
tractors. If a completed structure is to be furnished, then a con- 
tractor is usually held liable to build and deliver over such a com- 
plete structure and to be responsible for the maintenance and repair 
of a structure for a definite period; and the courts hold that the 
contractor adopts and approves the plans and specifications by 
which the structure is to be built. This again brings up the subject 
of liability for a structure whose failure is due to defective or 



144 SPECIFICATIONS AND CONTRACTS. 

insufficient plans, and what has been said on that subject will 
apply here. 

26. Conflict of Specifications with Worlc and Materials Fur- 
nished hy the Co-Contractors. — Sometimes work done by other con- 
tractors does not comply with the specifications, and the stability, 
strength or durability of the structure may depend upon such con- 
dition. If a post-contractor has warranted the stability, strength 
or durability of the structure, the question arises if he should make 
the defective work good. The economy and quality of the painter's 
work often depend upon the work done by the carpenter, and the 
masonry work often depends on the stonecutter's work, and the 
stability of a building may depend upon the foundations put in by 
a prior contractor, and the success and satisfactory completion of 
almost any job depends in a degree on the skilful performance of 
work by other contractors or material men. Frequently the ques- 
tion arises in doing masonry work as to who shall furnish the 
centers for the arches; whether the mason or the carpenter shall 
supply them. The obligation of each contractor is usually an obli- 
gation to the owner, and there are no relations between the several 
contractors except such as are created in the contract. If, there- 
fore, one contractor is under no obligations to another contractor, 
his obligation lies to the owner. His only remedy, therefore, for 
defective work is against the owner, and it therefore becomes the 
obligation of the owner to enforce contract obligations against each 
and every contractor. If the owner does not enforce such obliga- 
tions and if he does not require that each shall do his work skilfully 
and completely, then he should he held liable to other contractors 
for any damages which they may suffer by reason of the acts of 
co-contractors or material men. 

Sometimes the owner himself is to furnish the materials for 
certain parts of the work. If the owner is to furnish the mate- 
rials, as the steel and iron for a frame structure, and the con- 
tractor is to forge, assemble and rivet such materials into a com- 
plete structure, and the materials do not conform to the specifica- 
tions, the question arises whether the contractor is liable for the 
failure of the structure and if the contractor has not waived his 
rights by failing to protest against the use of inferior materials. 

27. Work to Specifications and Satisfaction of Owner. — When 
work is to be completed to the satisfaction of the owner or employer, 
and specifications have been prepared, or a certain result is to be 
obtained which has been defined and described, and the work has 
been completed according to such specifications or in such a manner 



NOTES ON THE LAW OF CONTRACTS. 145 

as to accomplish the result, the question arises if the owner must 
be satisfied. If the contractor has covenanted to do the work and 
to satisfy the owner, he cannot he said to have fulfilled his con- 
tract until he has satisfied his employer. But, the owner might 
unreasonably, unfairly and fraudulently refuse to declare his satis- 
faction, and thus defeat the contractor from recovering for his labor 
and materials. This the law will no't allow, especially if the struc- 
ture be erected upon the land of the owner or employer and to his 
benefit and cannot be removed. It would be unreasonable and 
unjust if the contractor should be denied a recovery for the reason- 
able value of his work and materials, or at least for so much as he 
has benefited the owner or employer. The law, or the court, there- 
fore implies a contract and imposes upon the owner a promise to 
pay to the contractor so much as he has been benefited. 

When, however, the labor and materials have been wrought into 
a chattel or an article which can be retained or returned to the 
contractor, a different rule has been adopted. If the owner declare 
himself dissatisfied and return the chattel to the contractor, it has 
been held that no recovery could be had, the contractor having 
failed to perform his obligation to please or satisfy his employer. 
When the work or materials have been incorporated into a bridge 
or a house, which by virtue of its permanent character has become 
attached to the land of the owner, the courts hold that if the work 
has been done according to the plans and specifications prepared 
and submitted by the owner, it should and must be to his reason- 
able satisfaction, and that therefore he must recompense the con- 
tractor. The courts hold in such cases that the work need be com- 
pleted only to the owner's reasonable satisfaction. When, there- 
fore, a contractor was to receive for a public work "whatever the 
board might allow as right and proper," it was held that the con- 
tractor could sue for his reasonable compensation, even though the 
board had tendered to him what it considered right and proper; 
and when an employee was to be paid whatever he saw fit to charge, 
it was held he could not make his charge unreasonable. 

The owner's dissatisfaction must be in good faith, and he can 
take into consideration only the performance of the terms of the 
contract. He may not require materials not contracted for, and his 
privilege must be exercised in a reasonable manner; not arbitrarily 
nor capriciously, for the purpose of defeating the contractor's 
recovery. 

28. Application of Specifications to Extra Work. — A provision 
that is often omitted in contracts and which is at times of impor- 



146 SPECIFICATIONS AND CONTRACTS. 

tance, is one that requires extra work, or "extras," to conform to 
the specifications and plans. Extra work, strictly, is work outside 
of and not included in the contract. Clauses which require mate- 
rials and work to be done to the engineer's acceptance have been 
frequently and generally held not to apply to extra work. For- 
tunately, the question is not often raised, because it is a foregone 
conclusion among contractors and engineers that when the inten- 
tion is manifest in the contract to require good, substantial work 
and to employ materials of good quality and make, and that the job 
or structure shall conform throughout to good workmanship, it is a 
natural inference that the specifications for such work shall apply 
to the extra materials and work, and this would be a reasonable 
construction for the courts to apply; but the courts do not imply 
warranties as to stability, strength and durability to extra work not 
mentioned and provided for in the contract and specifications. 

This fact, however, does not excuse the contractor for doing 
or furnishing extra work and materials that are defective and not 
suitable to the purposes for which they are intended. The general 
presumption of law that "an undertaking to furnish materials and 
do work requires the contractor to furnish such as shall accomplish 
the purpose for which they are intended," applies as well to extra 
work undertaken as it does to general work. Therefore, when in 
the construction of a house a contractor is asked to build the foun- 
dations and walls of a cistern, and he uses the same proportions of 
•cement, sand and stone for concrete as was used in the foundations 
€f the building, it has been held that he is liable for the defective 
and leaky condition of the cistern, and can not excuse his failure 
to make it tight by explaining that he has followed the contract 
and specifications in making concrete for the cistern. If the work 
had been done under the eyes of the inspectors and architect and 
with their knowledge and approval, it is doubtful if the contractor 
would have been held liable for the defective condition of the 
cistern. 

29. General Rules of Construction. — Throughout the discus- 
sion and application of these rules or decisions, it should be con- 
stantly borne in mind that in all cases of confiict it is a question of 
intention of the parties which will be determined by the court after 
a due and proper consideration of all the terms of the contract 
and specifications, and the circumstances surrounding the parties 
at the time they entered into the contract, and of the practical con- 
struction which the parties themselves have placed upon the con- 



NOTES ON THE LAW OF CONTRACTS. 147 

tract during its performance. The intention ascertained, it will 
prevail in all cases. 

30. Relative Length of Parts of Contract. — In connection with 
this the relative length of the contract and specifications has been 
the subject of much discussion in engineering and architectural 
circles. It is really of little or no importance, and the question 
should be determined by the universal rule that all legal documents 
should be made as brief and as clear as is possible. The length of 
the contract or the specifications should be determined solely and 
entirely by the detail and care with which the parties and their 
engineer define their intention, and that will depend largely upon 
their ability to use good, pure English. The intention should first 
be determined, and then it should be clearly, plainly and briefly 
expressed. If the engineer be painstaking, conscientious and given 
to detail, the specifications will be very lengthy, and if he tvho 
prepares the contract be concise and confident, his character will 
be reflected in the contract, and it will be proportionately abbre- 
viated. It will depend largely upon the personal equation and the 
experience of the party who prepares the instrument. 

31. When the Intention is not Expressed. — The intention of 
the parties should be fully expressed. If it be not, then the parties 
are likely to be bound by what is known as custom and usage, or 
the common practice, and this may not be what the owner or the 
engineers contemplated. The constant struggle between con- 
tractors and engineers, the former to have a good and workman- 
like job and the latter to have a superior and exceptional piece of 
work, keeps the standard of excellence low. Custom and usage 
when the specifications are not definite would probably be deter- 
mined by the contractor, the builder and the mechanics who work 
for and under him, which would make the standard probably infe- 
rior to what the owner and the engineer want. Unfortunately, 
engineers are not so ready and willing to assist one another in 
establishing a high standard of work, nor have jurymen so much 
confidence in the theoretical training of engineers as they have in 
the ordinary practical mechanic who is a layman like themselves 
and who has their sympathy. Jurymen are likely to be tradesmen, 
mechanics and material men, who favor contractors in the recovery 
for materials and labor which they have bestowed upon structures, 
and the benefit of which the owner has had and keeps. In such 
cases contractors have a superior advantage when they seek to 
recover for work which they have done or for materials which they 
have supplied. 



148 SPECIFICATIONS AND CONTRACTS. 

It therefore behooves the engineer, whose duty it is not only tO' 
protect the interests of his employer, the owner, but also to da 
justice to the contractor, to draw his specifications and to make his- 
plans with extreme care, so that his intention may not be misun- 
derstood, even though the parties endeavor to misconstrue them. 

32. Specifications and Plans should Provide for a Result, — 
Specifications and plans should provide for a result or a completed 
structure. They should not aim merely to secure the supply of 
materials and labor. They should be so complete as to require- 
nothing from the engineer or architect but a fair interpretation and 
explanation, and which, among persons familiar with the kind or 
character of work which is described, can reasonably receive but 
one interpretation. If the specifications be not complete and do not 
embody such direction and control as shall fix and determine fully 
what the contractor is to do and how it is to be done, and the 
owner or his engineer or architect is required to assume direction 
and control of the contractor and his employees, then the contractor 
ceases to be an independent contractor, and he and his employees 
become the servants of the owner, who may be held responsible for 
their acts or negligence. Such relations of the parties are to be 
avoided, as it is one of the principal objects in letting work to con- 
tractors to avoid the responsibility due to the acts and negligence- 
of the contractor and his servants. It is a well-established principle 
of law that the owner cannot reserve the control and direction of 
the contractor without assuming the responsibility for his acts. It 
is therefore recommended that the contract shall not bestow the 
direction or control on the engineer, but that the specifications and 
plans shall so clearly and explicitly define what is required of the 
contractor that the engineer or architect shall only have to define 
and interpret such specifications and plans. To accomplish this, 
the engineer is usually given the power to interpret and explain 
the plans and specifications, as where there are apparent omissions, 
or confiict between the several parts of the specifications themselves 
or between the specifications or the plans and the contract. 

33. Dividing Work, among Several Contractors. — In the prepa- 
ration of specifications a word might be said as to the practice, par- 
ticularly of architects, of letting work, as that of the erection of a 
building, to several contractors, as to a mason contractor, a car- 
penter, a plasterer, a plumber, an electrician and an ornamental 
iron-worker. This practice the author deplores, and congratulates 
the engineering profession that it has not fallen into this practice, 
which he regards as an evil. Such a contract puts it within the 



NOTES ON THE LAW OF CONTRACTS. 149» 

power of the several contractors to get in one another's way, to 
damage and destroy one another's work and generally to delay the- 
ultimate completion of the building. Engineers sometimes divide 
the subjec-t-matter of a contract into several independent stages, 
with good results. The foundation of a structure may be provided 
and furnished by one contractor and the superstructure by another^ 
as for a bridge or even for a building. So, frequently, the grading, 
the foundations for structures, the track and bridges and buildings- 
of a railroad may be profitably and reasonably let in four or five 
contracts; but they are contracts which mark separate stages of the 
progress of the work, where the several contractors are not upon 
or in charge of the work at the same time, and where they will not 
interfere one with another or destroy one another's work. TwO' 
excuses are usually made for subdividing the work of a structure, 
as a building, among several tradesmen or foremen-mechanics; one, 
that it saves to the owner the contractor's profit; and two, that it 
enables the owner or architect to select the best master mechanics- 
for the different branches of the work undertaken. It is the author's 
experience that the owner does not secure either the advantage 
promised or the saving hoped for. Master mechanics will not gen- 
erally give to owners the low prices that they will to employing 
contractors, and it will frequently be found that the selection of 
master mechanics is made by the architect, who sometimes, at least, 
profits indirectly and unknown to the employer, he having his 
favorites among mechanics and material men, which favoritism is 
sometimes cultivated to the extent of receiving commissions, engag- 
ing in business enterprises and accepting gratuities wholly unknown 
to the employer or owner. Another objection is that the owner is- 
deprived of the knowledge and experience of an employing con- 
tractor, who looks at the situation from the standpoint and with 
the eye of all the trades employed upon the job, while the practice 
of dividing it up into numerous contracts and among the several 
tradesmen or master mechanics gives to the owner only the separate 
and individual views and experiences of the several mechanics or 
tradesmen. 

34. Work, at Cost plus a Percentage or a Fixed Sum. — Of late 
:rears much work has been undertaken and done at a price denomi- 
nated cost-plus-a-fixed-sum or cost-plus-a-percentage, an example of 
which contract is furnished, introducing many conditions and cir- 
cumstances attending such an undertaking. If the owner and the 
engineer have explicit confidence in the contractor or superin- 
tendent who undertakes the work, such a practice is, without doubt. 



150 SPECIFICATIONS AND CONTRACTS. 

tlie fairest and best for both the owner and the contractor. It 
avoids paying extraordinary prices to insure contingencies, acci- 
dents and misfortunes which the contractor will certainly make a 
part of his contract prices, and it gives to the owner a lower per- 
centage of profit in consideration of his assuming the risks than 
the contractor would be content with if he assumed the risks of 
the work. On the other hand, the contractor is relieved of the 
anxiety and unforeseen obstructions and the extraordinary condi- 
tions attending the foundations and the ordinary risks of nature, 
as well as of labor and other organizations. 

Such a plan, however, with the dishonest contractor would be 
a burden to an owner or employer. Unfortunately, a practice has 
grown up among contractors, manufacturers and material men of 
secretly allowing and paying commissions to sub-contractors, agents, 
and even engineers, by which the actual cost of work, with the 
usual trade discounts, may be increased from 5 to 25 per cent. If 
a contractor were so disposed, he could fairly prove the actual cost 
of the work much more than it would be if he gave to the owner 
the benefits of low prices and discounts to which he is ordinarily 
entitled. Owners sometimes seek to meet sharp practices of dis- 
honest contractors by paying the bills for materials and the pay- 
rolls for labor themselves directly, but this does not obviate the 
evil practice, as the system of rebates is in vogue among con- 
tractors, material men and manufacturers, as well as between 
manufacturers and transportation companies. With a competent, 
honest and conscientious superintendent or contractor in charge 
of work, the system of cost-plus-a-fixed-sum, or cost-plus-a-percentage 
of the cost, has, without doubt, very many advantages, and usually 
results in great economy to the owner. This is especially true in 
new construction, such as armored or reinforced concrete, at the 
present day. The percentages or commissions paid to contractors 
under such contracts vary from 2^2 to 15 per cent., depending upon 
the character and size of the work. 

CONTRACTS. 

35. Contracts; Subdivisions, Covenants and Specifications. — 
Two things usually determine the subdividing of the Contract into 
covenants and specifications. One, a desire to prepare a general 
form of contract which may be used throughout the various depart- 
ments or bureaus and which shall be serviceable and apply to any 
and all structures undertaken; another is the desire to have the 
specifications contain and embody all those things and matters 



NOTES ON THE LAW OP" CONTRACTS. 151 

which pertain to the actual, physical construction, erection and 
completion of the work. The latter form is usually adopted for 
individual pieces of work or for similar structures, of which several 
are to be built under different contracts. In either case, the Con- 
tract will usually contain the general covenants pertaining to the 
liability of the contractor, the consideration for his undertaking, 
the manner, time and method of payment, provisions covering lia- 
bility for accidents, negligence and for default or delay on the part 
of the contractor or the owner. The contract will also contain 
provisions against subletting, the filing of liens and the failure to 
make payments for claims of material, men and laborers. It will 
provide for notices and contain those provisions required by statute 
laws of the state or the charter of the municipality, such as those 
providing for compliance with the labor law, the lien law, the 
giving of bonds, the filing of the contract, the compliance with 
ordinances and laws for the safety of the public, and police regula- 
tions. The contract should also contain the description of the par- 
ties, their residence, domicile, and the laws under which they exist. 
The contract should also contain references to such other instru- 
ments, ordinances and franchises as are intended to be made part of 
the contract, including the specifications, plans and special acts of 
the legislature or other public body under and by virtue of which the 
contract is made and carried out. If the contract be prepared for 
several bureaus or departments, and the several structures or pieces 
of work which are to be undertaken under it are authorized by 
separate acts of the legislature or of the board of aldermen, then 
these special authorizations are better embodied and made a part 
of the specifications which describe and specify the particular public 
improvement or work which has been authorized. In fact, in such 
cases it were better that all matters, provisions and stipulations 
pertaining to a particular piece of work should be embodied in the 
particular description of that work, which is the specifications. It 
is bad practice to repeat clauses and provisions in the several parts 
of the same instrument, unless they be made in the same language 
and applied to the same structure and to the same circumstances 
and conditions in each instrument, as such a practice leads to con- 
fusion and conflict which may be detrimental to the interests of 
either party. 

36. Extra or Additioival Work. — Extra or additional work is 
the contractor's aim and the owner's fear. Drastic provisions are 
written and inserted in contracts to avoid additional or extra work, 
especially where the contractor is to furnish for a lump-sum price a 



152 SPECIFICATIONS AND CONTRACTS. 

completed structure. Contractors sometimes take work for the fair 
and reasonable cost thereof, without profit, in anticipation that the 
extras of the job, at handsome prices, will afford them their profits. 
This is especially true where contracts are let after competitive bid- 
ding. The usual provision is that no allowances or payments will 
"be made on account of any additional or extra work, unless the 
same be ordered in writing by the owner and the price agreed upon 
at the time or before the work is begun, and that monthly state- 
ments shall be rendered of such extra work, under the title thereof, 
iDy the contractor to the owner. Provisions are written utterly pre- 
cluding a contractor from any recovery whatever for furnishing such 
extra work or materials, unless said provisions are strictly complied 
with. When such contract clauses are inserted, controversies fre- 
quently arise between the engineer and the contractor as to what 
is or is not extra or additional work. The architect and owner 
refuse to give such a written order or to determine the value of 
work done before it is undertaken. As a result, this extra or addi- 
tional work is one of the chief sources of litigation between con- 
tractors and owners; and it usually arises from the failure to 
properly and sufficiently describe the work to be done by the con- 
tractor, or from overbearing conduct of engineers and architects 
who are not willing to acknowledge that they inadvertently over- 
looked certain items of labor or materials which are required to 
complete the subject matter of the contract, or that they made 
mistakes in establishing lines and grades or in designing the work. 

Usually, if the work done by the contractor is strictly extra 
work and outside of the contract and specifications and plans, the 
courts permit him to recover for the same, even though no written 
order was made, no price agreed upon and no account rendered. 
This is usually allowed from the fact that the owner knew or 
ought to have known that the work was being done, and that silence 
under such circumstances gives consent. \ 

37. Character of Extra Work. — Provisions for extra or addi- 
tional work should be drawn with extreme care, and only after 
the specifications have been prepared, revised and reviewed, an .1 
after the engineer is satisfied that he has fully described all the 
work contemplated by the contract. The intention should be as 
clear as to what is comprised in the undertaking. Controversies 
over extra work are the chief source of litigation in construction 
contracts. 

Of the various kinds of extra work there might be mentioned 
that due to omissions from the specifications; that required to make 



NOTES ON THE LAW OF CONTRACTS. 153 

■alterations and changes and additions, as to meet the conditions of 
the soil or circumstances unforeseen and discovered during the 
progress of the work; that required to correct the mistakes and 
■errors of the engineer, his assistants and inspectors, such as errors 
or alinement, grade and measurement; that required for experi- 
mentation by the engineer or architect, as the adoption of new 
methods or new materials; that required to renew or replace dam- 
aged work, whether from action of the elements, act of God or from 
insufficient plans, and that required to extend work to secure greater 
stability, strength or durability. 

38. Alterations Affecting the VaUdity of a Contract. — It is a 
good practice to provide that alterations and changes made in a 
■contract shall not affect its validity. The courts have held that 
when contracts are substantially altered and in material respects, 
the contract may be held to be abandoned. It is therefore good 
practice to provide that alterations made during progress of con- 
struction shall not destroy the binding effect of the contract, so far 
•as it is applicable. As a rule it is good practice, when material 
alterations, additions or omissions are made, to have that the sub- 
ject of a supplemental contract duly signed by the parties. This 
obviates any question as to the effect that they may have upon the 
original contract and leaves the situation clear and unmistakable. 

39. Time of Essence — Delay. — In almost all construction con- 
tracts time is of essence — i. e., the structure is required to be com- 
pleted in a definite period of time. Delays are among the greatest 
misfortunes attending construction work. The delay in the comple- 
tion of a comparatively unimportant structure on the line of a 
railroad or other public utility, may tie up hundreds of thousands or 
even millions of dollars' worth of property and render it practically 
useless. It is absolutely essential that the various parts of a public 
improvement or a great work should be completed contemporane- 
ously, so that they may be utilized in their respective places. 
'Contracts are therefore drawn to avoid delays even of short periods, 
and almost every device known is employed to secure absolutely the 
performance of a contract within a stated time. Forfeitures, pen- 
alties and liquidated damages, bonds and clauses of abrogation and 
•cancellation of the most drastic character are inserted in construc- 
tion contracts to insure the most supreme effort on the part of the 
contractor to complete the work within the time named. On the 
other hand, on the part of the contractor, he seeks to have clauses 
relieving him from such covenants in case of labor strikes, riots 
and internal strife that are beyond his control. Manufacturers and 



154 SPECIFICATIONS AND CONTRACTS. 

supply men who have a monopoly of the goods which they manu- 
facture, insert such conditions relieving them from damages for 
delays caused by conditions beyond their control, and the poor 
contractor or master mechanic is in the position of being "between 
his Satanic Majesty and the deep blue sea." He is required abso- 
lutely and unconditionally to perform the terms of his contract 
with the owner, and he cannot, even by paying extraordinary prices, 
secure the same terms with the monopolistic material men and 
manufacturers. Add to this the troubles that arise with labor 
organizations, and the contractor is in a position not to be envied 
by the most optimistic business man. It is such circumstances that 
frequently cause the insolvency of some of the largest contractors; 
and builders. The drafting of clauses that will secure the comple- 
tion of structures absolutely, and at the same time be fair and 
reasonable as between the owner and the contractor, is one of the 
most difficult of any that the engineers are called upon to prepare. 
Other things should be considered than the financial interests of the 
company or owner, viz., whether or not a fair-minded business man 
would undertake absolutely to furnish the materials and erect a 
structure complete within a certain, definite time, when he knows 
absolutely that it is impossible to get a contract with the steel or 
bridge companies for materials with which the structure is to be 
erected. The entering into such contracts by builders and con- 
tractors is sometimes an act that makes lawyers and engineers 
question their sanity or good faith. 

40. Abrogation or Cancellation of Contract. — It is frequently 
provided that in the event of delay or certain defaults upon the 
part of the contractor, the owner may abrogate or cancel the con- 
tract and complete the work himself at the expense of the con- 
tractor; and that he may retain any moneys due and owing to the 
contractor for that purpose. This is an essential clause in a contract 
where the contractor is given possession of the land or the structure 
by license or lease from the owner, as the contractor in his unhappi- 
ness might tie up indefinitely the work and prolong the construction 
of it almost indefinitely. To meet such a situation without the 
clause, the owner would have to assert himself forcibly, and would 
very likely find himself very much in the minority with his engineers 
and household servants, while the contractor would be surrounded 
by his superintendent, foremen and an army of employees, part of 
whom might be the most desperate characters known to the com- 
munity. The author has known instances where the owner has 
attempted to abrogate or cancel the contract and to shut out the 



NOTES ON THE LAW OP CONTRACTS. 155 

contractor from the works, when the contractor has forcibly taken 
possession, proceeded with and completed the work, and then sued 
to recover the full contract price. Such a practice, however, is 
unusual, and the provocation must be great that would prompt a 
contractor or builder to assume such an undertaking. Usually the 
failure or refusal to pay the contractor in progress payments, as 
promised, is sufficient for him to abandon the work; but when the 
owner does that he then subjects himself to a countersuit for 
damages for breach of his contract. 

41. Abrogation Contingent on Engineer's Certificate. — Usually 
abrogation clauses are made dependent upon a certificate of the 
engineer that in his judgment the contractor has unreasonably 
delayed the work or has failed and refused to fulfill in accordance 
with the contract terms; and the right to abrogate or cancel the 
contract is made dependent upon such a certificate by the engineer. 
This may seem unreasonable and unfair, especially where the 
engineer is in the employ of the owner, but it is absolutely neces- 
sary to have the abrogation dependent upon some act which can be 
taken positively and unequivocally, and so as to define and determine 
the right of the owner to abrogate without any question as to 
whether or not the contractor has or has not fulfilled. 

If the engineer or architect act unreasonably and fraudulently, 
the contractor has his remedy in court, as the Halls of Justice are 
always open to any claimant who can show fraud- and collusion 
between the owner and his agents, architect or engineer. If the 
engineer unreasonably and arbitrarily and in bad faith give such 
certificate, or makes a decision against the interests of the con- 
tractor, he has but to show evidence of such fraud and bad faith 
sufficient to satisfy a jury that the conduct of the engineer was 
reprehensible or unfair, and he may recover whatever damages he 
has suffered by reason of such conduct, and usually from the owner 
who employs the engineer or architect; sometimes from the engineer 
or the architect himself. 

A contract should not be abrogated or cancelled except as a 
last resort, but in granting a contractor indulgences and permitting 
him to do things forbidden by the contract, and which are sufficient 
grounds for cancellation, the owner or the engineer or architect 
should make it perfectly clear by correspondence, or by declaration 
before witnesses, that the act or indulgence shall not be taken as a 
waiver of the right to cancel the contract or as a condonation of the 
conduct of the contractor. 

42. Waiver of Contract Clauses. — This brings up a subject 



156 SPECIFICATIONS AND CONTRACTS. 

which is very important throughout the performance of a contract, 
and especially in the administration of the engineer's or architect's 
duties. If a contract provides that payments shall be made in a 
certain way and upon certain conditions precedent, and they 
are made without regard to such events or conditions precedent not 
once alone but several times, the owner, engineer and architect may 
be held to have waived the express provisions of the contract, and 
they may become what is known as a "dead letter." Great care should 
be taken to follow strictly the terms and requirements of a contract, 
lest the parties, the contractor as well as the owner, be held to have 
waived certain conditions and to have modified the contract by the 
acceptance or adoption of other terms changing or even contradict- 
ing the express written terms of the contract. If a contractor 
submits to a construction or interpretation of provisions of a con- 
tract that are against his interests, and performs the work in 
accordance therewith, even though complaining, but without making 
sufficient protest, he may not thereafter claim and recover for such 
work, injuries or damages, but will be held to have waived the 
express provisions of the contract and to have acquiesced in the 
construction adopted or insisted upon by the engineer. Want of 
knowledge of this principle of the law causes great hardships to 
the contractor or the owner, who, in the belief that he has a written 
contract defining his rights, continues to expend labor and materials 
npon a job, or consents to things being done upon a structure, in 
the belief that the fair meaning of his contract will be upheld in 
court; and who afterward finds upon consulting a competent 
attorney, or when he gets into court at trial, that he has acquiesced 
and waived the express provisions of his contract to his detriment 
and loss. Engineers and architects in their desire to be fair and 
sometimes to even assist a contractor by making the contract terms 
easier, as sometimes by making payments ahead of time, commit 
their employer to a practice which is contrary to the express terms 
of their agreement and which works great mischief, not only by es- 
tablishing a waiver of such terms, but also, sometimes, by effecting a 
discharge and release of the contractor's sureties. 

43. Eifect of Indulgences. — There are so many results not 
anticipated to the layman that result from indulgences and from a 
failure to insist upon the full and complete performance of contract 
terms, that the author would impress upon students of engineering 
and architecture that they should not consider themselves at liberty 
to relieve the contractor from the full performance of the contract, 
to the letter, unless the same be submitted to the owner or to his 



NOTES ON THE LAW OF CONTRACTS. 157 

attorney as to the effect of such indulgences, omissions, alterations 
and changes. The responsibilities will then be placed where they 
belong, and the engineer or architect will not come in for condemna- 
tion when trouble arises in consequence thereof. 

44. Release of Sureties. — Sureties or bondsmen who have 
signed a bond conditioned upon the performance of certain things 
in accordance with the contract and specifications, have a right to 
insist that tne owner shall perform his part of such contracts at 
the times and in the manner and spirit, in the contract provided. 
If material changes are made in the contract or material obliga- 
tions assumed by the contractor are changed or the burden thereof 
increased, or if the owner does not perform his obligations and 
exercise all reasonable precautions for the protection of the surety, 
then the bondsmen may be released and discharged from their 
obligation to the owner. It should therefore appeal to the engineer 
that the utmost care should be exercised in the making of payments, 
in the furnishing of materials and in making material changes, that 
they shall not in any way affect the bondsmen, or that the surety's 
consent be obtained before such payments are made or changes 
effected. It is not necessary that such changes in the contract terms 
should be to the detriment of the sureties; if they be material 
changes and be even to the benefit of the sureties, the bondsmen 
may, nevertheless, be released and discharged, 

45. Penalties vs. Liquidated Damages. — The practice of insert- 
ing clauses providing for penalties, forfeitures or liquidated damages 
is one that has been carried to gross excess. There is no excuse for 
such a provision in a contract unless actual damages will be 
suffered, and unless, furthermore, the damage cannot fairly 
and reasonably be determined. Either party who assumes contract 
obligations is liable for the failure or refusal to carry out and 
fulfill the same, and in the amount of damages actually suffered; 
and the party who first commits a substantial default is liable to 
the other for the damages which he may suffer. A substantial 
breach by one party authorizes the other party to take advantage 
of the breach and to refuse further to perform his part of the con- 
tract. If, however, he continue in the performance of the contract, 
he may be held to have waived or condoned the first or primary 
breach by the other party. In such case it is often necessary to give 
notice to the party who has first committed a breach, that while 
you permit him to continue with the contract and while you continue 
to fulfill and perform your part of the contract, you do not waive 
or condone the first offense or breach. 



158 SPECIFICATIONS AND CONTRACTS. 

The courts are uniformly against the enforcement of contract 
clauses providing for penalties, forfeitures and even liquidated 
damages. If the contractor can show that the owner did not suffer 
any damages, or that the damages which he suffered are materially 
less than stipulated in the contract as liquidated damages, the courts 
are likely to refuse to enforce a clause for liquidated damages and 
to grant the owner only such damages as he has actually suffered. 
The courts will not enforce penalties or forfeitures in any case. It 
is therefore desirable always to avoid the words "penalties" and 
"forfeitures," and to expressly declare that the amount stipulated is- 
liquidated damages and not penalties and forfeitures. If an amount 
be stated as liquidated damages for the breach of a contract, the 
owner will usually be limited to that amount, even though his 
actual damages are several times as much. The clause therefore 
works both ways, against the interests of the owner as well as to 
protect him. If the amount named be made so great as to provide 
for any and every breach, then it will be so greatly in excess of one 
or a few breaches by the contractor that the courts will regard it so 
unreasonable and burdensome that they will refuse to enforce it^ 
and will give to the owner only the actual damages that he may 
prove that he suffered by reason of the one or several breaches by 
the contractor. The use of a clause providing for liquidated dam- 
ages is excusable only in those instances or cases where the amount 
of damages cannot be determined or assessed. 

46. Indemnity Clauses. — A contract for the erection and com- 
pletion of a structure or works should not be turned into a policy 
of insurance. It has been the practice to make a contractor liable for 
damages or injuries to persons and property resulting from his 
operations in the erection of structures; also to make him liable for 
acts or negligence of himself and his employees. Ordinarily, such 
indemnity should be limited to the wilful, negligent and malicious 
acts of the contractor, and he should not be required to indemnify 
the owner for misfortunes, injuries or damages to the person or 
property of other people, which are the natural result of the under- 
taking, and which could not reasonably have been avoided by the 
exercise of due care and diligence on the part of the contractor. Of 
course, it may be the intention of the owner and engineer to make 
the contract one of insurance or indemnity at all hazards and in 
any case. If such be the intention, it should he made clear and the 
contractor should so understand it. 

Under the general clause making the contractor liable for the 
misconduct and negligence of himself and his employees, engineers 



NOTES ON THE LAW OF CONTRACTS. 159 

and their employers have undertaken to shift upon the contractor 
damages and injuries of every kind and from whatever cause. Thus, 
in the erection of an elevated railroad over a trolley line, the rail- 
road company has sought to hold the construction company for 
damages which it suffered by causing the death of one of the 
employees of the contractor, which resulted from the operation of its 
trains — i.e., by running them too fast; and a municipality has 
endeavored to hold a contractor responsible for damages to a mill- 
owner resulting from depriving him of sewage water taken from a 
stream by an intercepting sewer built for the municipality. The 
damages complained of in the latter case were caused not by the 
negligence or misconduct of the contractor, but by the fact that the 
sewer was built at all, and the courts held that the municipality 
only was responsible and not the contractor. 

If construction contracts be drawn so as to provide for insur- 
ance of all the risks that may arise during the construction, and 
so as to assume responsibility for the results of the erection, com- 
pletion and operation of the works undertaken, it may be expected 
that insurance premiums will be added to the contract price of the 
contractor, and that the premium rates will be in excess of that 
charged for marine insurance. It is the feeling of the writer that a 
construction agreement should not be made a contract for insurance. 

47. SuMetting and Assignment of Moneys Earned. — Contracts 
usually provide against the subletting of work without the consent 
of the owner or engineer. They also sometimes forbid the assign- 
ment of moneys earned or to be earned. If the contract forbids 
the subletting of the contract or parts thereof to other master 
mechanics or contractors, the performance of the contract may not 
be sublet to other persons; but, generally speaking, a provision 
forbidding the assignment of moneys earned or to be earned (in 
the absence of a statute to the contrary as to wages) is not binding 
upon the parties, as it prevents the transfer of property rights of 
the contractor. This has been held to be so even when an act of the 
legislature forbids the assignment of moneys earned under a con- 
tract for a public improvement. It has also been held that such 
provisions do not forbid the employment of sub-contractors or master 
mechanics in the several trades to do the work for and on behalf 
of the contractor, especially where the contractor is a general con- 
tractor and known to be such at the time the contract was entered 
into. Some courts have treated these clauses of contracts forbid- 
ding subletting with more or less indifference, unless the owner 
had and showed some good and sufficient reason for refusing his 



160 SPECIFICATIONS AND CONTRACTS. 

consent to the subletting, on the ground that the contractor was 
responsible for the performance and completion of his contract, and 
for the further reason that in the event of death or disability, it 
could and would very likely be performed and completed by his 
executor or administrator, who might be anybody mentioned in the 
will or designated by the Surrogate. 

In the case of contracts for personal or professional services, a 
contrary rule would prevail if the contractor be selected on account 
of his peculiar qualifications and special skill to erect, say, a light- 
house. In such a case it is doubtful if the contract could be assigned 
or sublet, or if it would descend to his executors and administrators 
upon his death. Contracts for professional services, as those of an 
architect, engineer, attorney or physician, are not assignable and 
cannot, against the wishes of the owner or employer, be continued 
and completed by the legal representatives of the professional man. 

48. ArMtration or Engineer's Decision. — Dr. Waddell's belief 
in arbitration is not shared by the writer in construction contracts. 
The writer's experience with contract clauses providing for arbitra- 
tion is that in nine cases out of ten, when controversies have arisen, 
one or the other of the parties will refuse to carry out the pro- 
visions for arbitration. This they may do with impunity, as there 
is no means of compelling them, under the ordinary provisions of 
the contract, to carry out the terms of the submission to arbitration; 
and they may, without generally subjecting themselves to any 
damages whatever, decline either to appoint arbitrators or to attend 
an arbitration. If, however, they do take part and the award be 
made and served upon the parties, they are irrevocably bound by 
such an arbitration. The trouble is and will he that they will refuse 
to either appoint arbitrators or to attend or take any part whatever; 
or one of the parties will seek to limit the scope of the arbitration 
to those matters and things in which he feels the stronger, elimi- 
nating and refusing to arbitrate matters which are apparently 
against him. 

Owing to this fact the use of the arbitration clause might as 
well be omitted, as the parties, if willing to arbitrate, can at any 
time come to terms of an arbitration for the settlement of their con- 
troversies, and the use of the clause under the circumstances deceives 
and misguides the contractor and sometimes the owner in the 
belief that he can require the other party to submit their differences 
to a board of arbitrators to be selected in accordance with the 
terms of the contract. 



NOTES ON THE LAW OF CONTRACTS. 161 

49. Arbitration Defeated. — The general form of contract 
approved by the American Institute of Architects and the National 
Association of Builders contains a clause similar to that given in 
the text, and of some twelve or more cases that have come to the 
notice of the writer, in only one have the parties consented to and 
carried out the provisions for arbitration. In fact, it may be taken 
as the rule, rather than the exception, that the owner will not carry 
out the provisions for arbitration, and if he do he will insist that 
the questions to be submitted be limited, or that the arbitrators be 
selected from the legal, architectural or engineering profession, so 
that the contractor will be outclassed, if not prejudiced. This 
declaration is made after ten years' active experience in such 
cases. It is believed that there is no more danger of injustice in sub- 
mitting questions of construction to the absolute determination of a 
civil engineer than there is in submitting it to the determination 
of a judge, who may be as subject to influence as is the engineer, 
and generally I believe that contractors, if they conduct their 
operations in a fair, conscientious and skilful manner, will be better 
treated and get more justice at the hands of a competent, experi- 
enced civil engineer than they will at the hands of twelve ignorant 
jurymen. The influence of blood, caste, politics, religion and secret 
societies upon the different units of a court, are just as likely to 
affect the recovery of a contractor in court as is the personal bias of 
the engineer of the field or office; and the practice, which has grown 
up in the centuries of experience, of leaving construction matters 
to the determination of the engineer, is one that should be respected 
and not dispensed with for the reason that it is autocratic. What 
should be done among engineers and architects is to establish and 
maintain such a standard of practice and of judicial determination 
as shall command the respect and consideration of all contractors 
and builders, and the dishonest, disreputable engineer or architect 
deserves any fate that may overtake him. He is quite unfit to 
exist in a civilized community. 

An arbitration which requires the employment of three repre- 
sentative men of a community or of professional life is an expensive 
tribunal to determine ordinary questions of engineering contracts. 
The expense of providing the arbitrators, added to that of the 
stenographer at professional prices, is sufficient to deter the average 
owner or contractor from proceeding with an arbitration, even 
though he may have agreed to it inadvertently in the contract, not 
knowing the extraordinary expense attending it. Trials at courts 
are practically without expense to the litigants, except the employ- 



162 SPECIFICATIONS AND CONTRACTS. 

ment of attorneys and the expense incident to providing witnesses, 
experts, etc. This is expensive enough. 

50. Appeal to Single Arbitrator. — A practice that is gaining 
favor is to make an appeal from the engineer in charge of the work 
to some distinguished, high-class engineer or other person familiar 
with the work, and who has no personal acquaintance with either 
the engineer or the architect in charge or with either party, and to 
leave the determination of question in dispute to his sole determi- 
nation. Such a practice is much less expensive, and by it the parties 
secure the knowledge, experience and superior insight of a -profes- 
sional man who, having no interest whatever in the matter and not 
even an acquaintance with the parties, would he most likely to 
determine the matter fairly and without prejudice. If such a party 
be named in the contract when it is entered into and his determina- 
tion he made final and conclusive, instead of the employee of the 
owner, then there can be no failure of the arbitration, and the 
parties, when the subject is submitted by the engineer in charge 
to the arbitrator, will be conclusively bound by his decision and 
award. Such an arbitrator need not necessarily be the foremost 
engineer of the continent nor a leading light in the societies, but a 
man whose experience in the particular line of work would specially 
qualify him to determine the questions at issue. 

Neither party to an arbitration can appeal from the decision 
of the arbitrators when it is once made and communicated to the 
parties. No appeal can be had by either party to the courts, unless 
gross fraud and collusion are shown between the arbitrators and 
one of the parties or the engineer and architect. The award by 
arbitrators is final and conclusive upon the parties, without appeal, 
if the award was fairly and honestly made. 

51. Engineer's Decision as to Extras and Additional Worlc. — 
Extra work has been defined as work outside of the contract. A 
contract is supposed to apply to the work described therein, and the 
terms of a contract cannot by implication be extended to apply to 
anything except the structure, work and materials described. If, 
therefore, it is intended that the engineer or arbitrator should pass 
upon, inspect, accept and reject extra work, the contract should 
specially provide therefor; otherwise his decision will not be final 
and binding upon the contractor as to such extra and additional 
work. The omission of this clause is one of the serious mistakes of 
engineers and architects in the preparation of contracts. 

52. Laws of what Place Govern. — It is well known that the 
laws differ in the different states and territories. The laws of 



NOTES ON THE LAW OF CONTRACTS. 163 

contracts are practically the same throughout the United States and 
in the British possessions, but many laws which determine the 
rights and liabilities under contracts vary greatly in different locali- 
ties. Some states have what are known as statutes of frauds, 
which determine the form and conditions under which binding 
contracts may be made and concluded; also statutes of limitations, 
which limit the time within which obligations are required to be 
enforced by action in the courts. There are also lien laws and labor 
laws which affect the contract and which differ in the various 
states, territories and possessions of the United States. Therefore, 
what laws apply to the contract? Generally, laws pertaining to the 
legality and enforcement of the contract will depend upon the laws 
of the place where it is made, and the laws pertaining to labor, 
liens and legal rights of the parties will depend upon the place 
where it is to be performed and enforced. These matters should 
always be taken into consideration in the preparation of a contract, 
and they usually require the advice of an attorney-at-law who is 
familiar with the laws respectively where the contract is made and 
where it is to be performed, and with the laws of the domicile of 
the respective parties. 

53. Corporate Power to do Business. — Another important mat- 
ter to be considered, where either of the parties is a corporation and 
the work is to be in a state or locality other than the domicile of 
the corporation, is to determine that said corporation is entitled 
to do business in the locality where the work is to be performed. 
For instance, if a Jersey or Maryland corporation goes to the State 
of New York and undertakes the erection and completion of a 
structure, and it enters upon the performance of the contract with- 
out securing from the Secretary of State the necessary license and 
certificate to do business, the said corporation cannot enforce its 
claims in the courts of the State of New York, nor can it collect 
in its courts from the persons or corporations doing business in 
the State of New York under license any of the moneys earned in 
the performance of the whole or any part of the said contract. This 
Is true in the State of New York, even though the contractor cor- 
poration obtains, subsequent to undertaking the work, a license to 
do business within the State of New York, and the courts have 
gone so far as to hold that the foreign corporation doing business 
in the State of New York without a license cannot assign the claim 
accruing to it from the doing of business in the said state to a third 
party, with the right to sue and recover the said claim. This is a 
very grave hardship to a foreign corporation, and it is a matter that 



164 SPECIFICATIONS AND CONTRACTS. 

is comparatively new in the statute laws of our states, and it there- 
fore behooves the engineer who prepares contracts for foreign cor- 
porations to see that said corporations are licensed to do business 
in the territory where the contract is to be performed and fulfilled^ 
lest the money be expended, the work done and the materials fur- 
nished, with grave doubts as to a recovery therefor. 

This is an example of what may result from engineers and 
laymen preparing contracts and undertaking to do business without 
the necessary guidance, counsel and advice of a well-informed 
attorney-at-law, and it is but one of many instances of serious loss 
resulting from a desire to economize, in what to good business men 
are necessary expenditures in the conduct of any business — viz.^ 
legal supervision. 

54. Other Legislative Restrictions. — Restrictions are likewise 
imposed frequently by the legislature upon municipal corporations, 
including school districts and boards of education. They are 
frequently restricted in their powers to contract, and require cer- 
tain forms and certain ceremonies to be followed before a valid 
contract can be made and entered into. One restriction most 
familiar is that of advertising and awarding a contract to the lowest 
bidder after public competition, and another is that the undertaking 
should be founded upon petitions of abutting property-owners, and 
another that it should be authorized by resolution of the board of 
aldermen or city council after public notice and hearings. Other 
requirements are that the contract should be approved by the cor- 
poration counsel, and that money should be appropriated and cer- 
tified by the financial officer of the municipality or of the state. 
When these conditions are made conditions precedent to the making 
and entering into of a contract by the government, state or 
municipality, it is absolutely necessary that they should be strictly 
followed, to the letter of the law, lest they be declared by the courts 
to be ultra vires, invalid and not binding, and lest the contractor 
shall have performed and fulfilled the contract in whole or in part,, 
only to find that he is not entitled to recover for his services, labor 
and materials. These are hardships against which neither the courts 
nor public officials can relieve, though they may be subsequently 
authorized and payment provided for by act of the legislature or of 
Congress, if the contractor have the influence requisite to secure 
the passage of a bill authorizing the same, which frequently is not 
only expensive to the contractor in time, but in other valuable con- 
siderations. 



NOTES ON THE LAW OF CONTRACTS. 165 

55. Restrictions and Limitations are Numerous. — The restric- 
tions and conditions precedent prevailing in these modern times 
in the various states and nations are so numerous, so exacting, so 
extraordinary, that no corporation or well-informed business man 
or men will undertake a project of any importance without the 
advice and counsel of a local attorney. To do so is suicidal to the 
best interests and success of an undertaking. A restriction affecting 
the right to enforce or to recover under a contract is that existing 
in some states and which requires that the contract (and in 
some states the specifications and plans) shall be registered 
in the office of the town or county clerk, which precludes the con- 
tractor from recovery for the work done and the materials furnished 
if the law be not complied with and which in some localities makes 
the contractor's recovery secondary to that of material men and 
laborers who have furnished materials or labor for the structure. 
These laws may appear to the student drastic and unreasonable and 
unconstitutional and against the inviolability of contracts and 
within the inhibitions of the Constitution of the United States, but 
they have been held constitutional and are in force, and it is much 
easier and far more economical to meet such conditions than it is 
to litigate them through the highest courts to establish their uncon- 
stitutionality. 

56. Lien and Labor Laws. — Other local laws which should 
always have the consideration of the parties who enter into a con- 
tract to be performed in a foreign state or nation are the lien and 
labor laws, which give to certain persons or classes of persons a 
preference in the payment or establishment of their claims and 
which determine the hours of labor, and in some instances even the 
prices to be paid therefor and the manner of payment. These 
restrictions may greatly enhance the cost of labor and materials and 
therefore the structure, and seriously affect the contract price. If 
they are not considered in making the bid and before entering into 
the contract, then they may be and become the ruin of the con- 
tractor and of the project itself. 

In addition to the various statute laws, there should also be 
mentioned the laws of custom and usage which prevail in different 
localities and which determine the unit-method or manner of 
measuring or determining quantities, or the manner and method of 
doing, performing and completing work and the times or methods 
of payment. These customs and usages are at times far-reaching, 
especially in determining the measurement of stone, brick and 
plaster work. 



166 SPECIFICATIONS AND CONTRACTS. 

57. Authority to Contract. — One of the most difficult and deli- 
cate things to determine in negotiating a contract is the authority 
of the person or party who assumes to act, to make and enter into 
a contract. If the real party be a corporation, it is a matter of 
some delicacy to ask the engineer, the general manager or the 
president for evidences of his authority to make the contract on 
behalf of the corporation. The authority is vested primarily in the 
board of directors, and it can be delegated only by an act of the 
board of directors regularly convened, at a regular or special meet- 
ing duly and properly called. Frequently the president or general 
manager is authorized to execute contracts by the by-laws or by a 
general resolution of the board. In such cases it is incumbent upon 
the contractor to ask to see such minutes or to be furnished with a 
copy of such resolutions certified over the hand of the secretary and 
the corporate seal of the company. Likewise, the authority of a 
public officer should be determined before accepting or entering 
upon a contract executed by him. An agent, likewise, should be 
expected to show conclusive evidence of his authority, by power of 
attorney ordinarily, to make and enter into contracts for and on 
behalf of his employer or principal. The authority of a public 
officer will usually be found in the constitution or statutory laws of 
the state or in the charter and ordinances of a municipality. Much 
trouble, litigation and loss would be prevented if contractors, engi- 
neers and architects would look into this matter of authority of the 
parties to act, before accepting obligations assumed by them. 

58. Legal Representatives of the Parties. — In contracts that are 
assignable it is customary to declare the contract binding upon the 
legal representatives of the parties. This is hardly necessary, as 
every assignable contract is for the benefit of the legal representa- 
tives of the parties. It might be that the legal representatives of a 
person deceased might refuse to proceed with and fulfill some con- 
tracts that partake of the character of personal services, and it is 
a common practice to describe the parties as being the persons or 
partnership and their executors, administrators or assigns. A 
frequent expression among engineers and architects is to seek to 
obligate an incorporated company, "its executors, administrators and 
assigns," as if a corporation could have executors and administrators, 
which is impossible. A corporation's legal representatives are 
usually described by the words "successors and assigns"; a person's 
l»y the words "executors, administrators or assigns," sometimes by 
the word ''heir," which in a contract is superfluous. 

59. Consideration. — The consideration of a contract ordinarily 



NOTES ON THE LAW OF CONTRACTS. 167 

is that which the contractor is to receive for his undertaking, but 
what he is to do is no less a consideration moving to the owner. 
In the contemplation of the law, that which the contractor is to do 
or perform is the legal equivalent of that which he is to receive 
from the owner, hut the law (the court) shuts its eyes to ordinary 
inequalities and will not substitute its own opinion for that of the 
parties as to whether or not the acts and deeds of the parties are 
equivalent. The courts will find an adequate consideration, unless 
it be so clear that the consideration cannot be equivalent to the 
obligation assumed by the other party. A ridiculous illustration of 
such a case is one where the contract provides that "for and in 
consideration of one dollar by the parties each to the other in hand 
paid (a mutual exchange), the contractor hereby does undertake 
and agree as follows." It is perfectly apparent that the exchange 
of one dollar affords no consideration for the obligation of the con- 
tractor, and such an expression might better be entirely omitted, as 
it is an express declaration that no consideration did pass between 
the parties. 

60. Execution of Contracts. — Contracts are usually executed, 
i. €., evidenced, hy the signature and seal of the party and fre- 
quently by the acknowledgment of that signature before a notary 
or commissioner of deeds. The signature and seal subscribed and 
placed at the end of a contract are to witness the same; the seal is 
a mere formality quite necessary when either of the parties is a 
corporation. Care should be taken that the signature is in the 
name of the party who assumes the obligation and whose name is 
written at the beginning of the contract as the contracting party. 
It is especially important that the exact title of a corporation 
should be used, and the name of the corporation should be sub- 
scribed, followed by the word "By" and the name of the officer who 
executed it, with his title. It is good practice to place at the left 
thereof the word "Attest," with the seal and the subscription of the 
name of the officer who attests and affixes the seal. Likewise the 
name of a co-partnership should be signed in full with the word 
"By" and the name of the party subscribing, with his title, as 
partner, agent or attorney. A person acting under a power of at- 
torney as an attorney-in-fact should be distinguished from an 
attorney -at-law merely. A common form is "IN WITNESS 
WHEREOF the parties hereto, on the day and date above writ- 
ten, have hereunto subscribed their names and affixed their seals." 
This, however, will not answer for a corporation which has not 
the power to subscribe its name and to aflBx its seal. For a cor- 



168 SPECIFICATIONS AND CONTRACTS. 

poration a common form is "IN WITNESS WHEREOF the parties 
hereto have caused this instrument to be executed by its appro- 
priate officers on the day first above written." 

61. Proof of Contract. — The object of having a contract, deed 
or bond signed is in order that it may be more readily proven in 
court. The courts require that either the parties themselves be 
called to prove the execution of the instrument, or that somebody 
who saw or knows the signatures of the parties, testify to the fact 
that they are the signatures of the parties. It is therefore 
convenient to have the party who witnesses the subscription to the 
instrument, attest to the same by subscribing to the following 
words, "Signed, sealed and delivered in the presence of," if the de- 
livery of the instruments be made then and there. If only signed 
and sealed then omit the word "delivered." It is preferable, how- 
ever, to have the execution of the instrument acknowledged before 
a public officer authorized to take such acknowledgments. Such are 
notaries public, commissioners of deeds, clerks and judges of courts. 
If such an officer signs and seals such an acknowledgment the court 
will accept the instrument as sufficiently proved to be admitted in 
the evidence. If, however, the instrument is to be used in some 
other state than that in which the notary public or commissioner 
of deeds resides, it is necessary to have the clerk of the court (the 
county clerk) of the county in which the notary or commissioner 
of deeds resides certify that the person so subscribing is a notary 
public during the period within which the instrument is acknowl- 
edged to have been executed. This certificate should not be over- 
looked upon any instrument which is to be used without the state 
within which it is executed, especially if the instrument (contract 
or otherwise) is to be registered with the county or town clerk in" 
said foreign state. If the contract is to be used in a foreign coun- 
try, it is sometimes necessary to have it attested or certified by 
the minister or consul credited to that country. 

There is more to the proper execution of a contract, deed or 
bond than is generally supposed among laymen, and it is well always 
to submit a contract, deed or bond to an attorney before it is 
finally accepted, for advice as to whether it has been duly and 
properly executed and all the requirements of the law complied with. 

62. In conclusion, the writer would impress upon technical 
students a realization of the value to them, as engineers or busi- 
ness men, of the study of the principles of contract law, and 
recommends most strongly an earnest effort to prepare Specifica- 



NOTES ON THE LAW OF CONTRACTS. 169 

tions and Contracts covering the examples presented by Dr. Wad- 
dell, and in connection therewith to study and apply the principles 
which he has laid down, having in mind the evils and misfortunes 
described in the foregoing sections. As practicing engineers and 
architects, or as business men, you will unquestionably appreciate 
the value of such study and exercises more than you can now, as 
students, realize their importance. A very valuable feature of Dr. 
Waddell's lectures is the practical examples presented, which are 
abundant food for intellectual effort and application. For reference 
and for a more extended treatment of the law of contracts, the 
writer naturally refers to his own works, which Dr. Waddell has 
already mentioned in the text. 

It is the element of practical illustration and example — the 
principle of laboratory instruction embodied in Dr. Waddell's lec- 
tures that will recommend his treatment to professors of technical 
schools. This principle is the one that to-day places the industrial 
schools nearly a century in advance of the schools of law and per- 
haps of theology. This presentation and study of the practical and 
the theoretical together is the one thing, more probably than any 
other, that has contributed to the superiority of our industrial and 
technical schools, and our colleges of medicine, dentistry and agri- 
culture. Much though it is to be regretted, it has yet to be adopted 
generally in the law schools. 

Be not content with theories, 

Dare the arduous and practical. 

"Reading makes a full man, writing an exact man." 

Read and write. 



INDEX. 



Page 
Abandonment of work.... 17, 86, 88 

Abrogation : 

Contingent on engineer's cer- 
tificate 155 

Of contract 71, 154 

Abutments, concrete 29 

Acceptance : 

By engineer an added safe- 
guard 139 

Of defective work 14, 141 

Of structure 141 

Accidents, responsibility for.... 15 

Accounts 84 

Adherence to specifications 10 

Agency 68 

Agreement : 

For developing large euter- 

prise 89 

Promoters' 89 

To finance an enterprise 99 

Alterations 7 

Affecting validity of contract. 153 

In contracts 72 

In specifications 11 

Of plans 15 

To be ordered in writing 19 

Appeal from arbitrator's award. 73 

Arbitration 160 

Appeal from award of 73 

Defeat of 161 

Of disputes 20, 73 

Arbitrator, single 162 

Arbitrators 88 

Assignment forbidden 20 

Of moneys earned 159 

Attestation to contracts 65 

Authority to contract 166 

Backfilling 32 

Bending tests 25 

Blasting 23 

Bonds 74, 79, 87 

Borings 28 

For steel pier 40 



Page 

Bridge contract, example of . . . . 80 

Cancellation of contracts. .. .71, l54 

Cement 30 

Fineness of, 31 

Storage of 32 

Tests 31 

Changes in specifications 11 

Co-contractors, specifications in 

conflict with work of 144 

Commissary 83 

Commercialism 7 

Competency of parties to con- 
tracts 65, 67 

Compromise on claims 75 

Concealment of facts 8 

Concrete 29 

Tamping dry surfaces in 30 

Conditions, changes in 7 

Conditions precedent to contract. 69 
Conflict between specifications 

and contractor's judgment.. 143 
Conflict of specifications and 

plans with terms of contract 133 

Conflict of specifications with 

co-contractor's work 144 

Consideration 76, 166 

Inadequacy of, in contract. ... 70 

Construction : 

Of contract as a whole 142 

Of contracts and specifications 146 

Of steel pier 40 

Contract : 

Abrogation of 154 

Authority of parties to 166 

Cancellation of 154 

Consideration of 166 

Construction against party us- 
ing language 135 

Construction of 146 

Construed as a whole 142 

Covenants of 150 

Date of 75 

Engineer's powers defined in. 138 



I'age 

IJsseutials of 70-76 

Execution of 1G7 

Form 7G 

Intention to be fully expressed 

in 147 

Interpretation of iru, 135 

Proof of 168 

I'unctuation of 13o 

IJelative lengths of various 

parts 140 

Scope of 21, 61, 131 

Signature and seal 7'> 

The superior instrument 134 

Time of essence in 153 

Unsealed 75 

Validity of, affected by altera- 
tions 153 

Waiver of clauses in 155 

Warranty involved in entirety 137 

Witnesses to 75, 168 

AVritten and printed matter.. 135 
Contract writing, examples for 

practice in 110-127 

Contractor, directions to 14 

Contractor's details , 12 

Contractor's judgment in conflict 

vrith specifications 143 

Contractors, several 6 

Contracts : 

All parts reconciled if possible 134 
Distinguished from specifica- 
tions 60 

Engineering 60 

Essentials of 62. 63, 70-76 

i^'or personal service 69 

Fraudulent changes of 108 

Indemnity clauses in 158 

Misplaced confidence in 62 

( 'orporations : 

Tower of, to do business 163 

Restrictions imposed on. . .164, 165 

Corrections of legal documents. . 107 
Cost-plus-a-percentage plan. 80, 89, 149 

Counsel 1 08 

Covenants of contract 150 

Damages 15 

Liquidated 32, 71, 89 

Date of contract 75 

Decision of engineer 78 

Defective work 86 

Acceptance of 14 

And materials accepted by en- 
gineer 141 

Delay, no damages for 20 

Delays 78, 79, S3 

Deliberation 108 

Delivered material 19 

Development of large enterprise, 

agreement for 89 



Fap" 
Drawings : 

At variance witli plans 133 

Detail 3. 12 

Errors in 12 

Shop 13 

N'erification of 12 

Drifting tests 25 

Duration of contract (t9 

Engineer, status of 1 

Engineering contracts (>() 

]']ngineer"s accei)1ance : 

An added safe,i,'uard 139 

Of defective work and ma- 
terials 141 

Engineer's decision 78. 87, 138 

As to extra and additional 

work 162 

Vs. arbitration 160 

Engineer's details 12 

Engineer's duty to follow speci- 
fications 139 

Engineer's mistakes 9 

Engineer's powers defined in con- 
tract 138 

Engineer's preparation 7 

Engineer's rejection of work and 

materials 140 

Equity 74 

Erasures in legal documents. . . . 107 

Essentials of contracts 63 

Attestation 65 

Introduction 64 

Parties, authority of 66 

Parties, description of 65 

Parties, number pf 65 

Parties, precedence of 66 

Ultra vires 66 

Eventualities 70 

Example : 

Promoter's agreement 89 

Examples for practice in contract 

writing 110 

Bond 126 

Concrete dam, promoter's agree- 
ment 116 

Copartnership 126-127 

Electric St. Ry. and viaduct. . 110 
Employment, agreement for. . . 116 

Engineering partnership 114 

Engineering services, contract 

for 123 

Guaranty of syndicate by 

bankers 125 

Ocean pier 120 

Partnership, engineering 114 

Replacing steel Ry. bridge. . . . 113 
Syndicate, contract among 
members 123 



Page 

Viaduct 112 

Water-supply and sewage sys- 
tem . . . •. 119 

Examples for practice in writing 

specifications 48 

Abutments and piers , 51 

Archbridge, reinforced concrete 53 

Arch culvert 49 

Bridge erection 58 

Bridge, R. R 52, 53, 59 

Building, steel 57 

Chimney, brick 55 

Cleaning and repainting 55 

Concrete sewer main 53 

Dam, concrete 54 

Dyke 56 

Excavation 56 

Foundation, floating 58 

Grading 50 

Jetties, rock 55 

Lighthouse, steel 58 

Paving : 

Asphalt 56 

Wood block 56 

Piers : 

Masonry 52 

Timber 54 

Pipe line 51 

Railroad 54 

Bridge 52, 53, 59 

Reinfo.rced-concrete arch bridge 53 

Retaining wall 49 

Roundhouse 58 

Sea-buoy 58 

Settling basins 56 

Sewer main, concrete 53 

Steel water tank 53 

Swingbridge 57 

Timber pier 54 

Tower, steel 59 

Track, electric Ry 57 

Train-shed 57 

Trestle, R. R 54 

Tunnel, in clay 50 

Rock 50 

Turntable 55 

Viaduct 59 

Water tank, steel 53 

Well, brick 55 

Examples of specifications : 

Lighthouse 34 

f'ipe line 45 

Steel pier 39 

Excavation 29 

Execution of contracts 68, 167 

Form of 79, 88 

Executive 68 

Extension of time 19 

Extra compensation 20 

Extra work 151 

Application of specifications to 145 



Page 

Character of 152 

Defined 5 

Extras 18 

Price of 77 

To be ordered in writing. .72, 78, 79 

Favoritism 6 

Field riveting 20 

liinancing an enterprise, agree- 
ment for 99 

Forms for concrete work 30 

Foundations : 

Depths of 28 

Lighthouse 35 

Fracture 25 

Fraudulent changes of contracts 108 

Government as party to contract 68 

Guaranty of results 3 

Implied understanding of plans. 137 

Implied warranty of work .... 136 

Indemnity 15, 78 

Clauses in contracts 158 

For negligence 75 

Indulgences, effect of 156 

Infants 67 

Inspection : 

Delay in 13 

Expense of 13 

Facilities for 13 

Field 13 

Final 14 

Notice of 13 

Of defective work 14 

Strictness of 16 

Insurance 85 

Intent of specifications 16 

Intention, to be fully expressed. 147 
Interpretation of contract, 

134, 135, 148 

Introduction to contract 64 

Labor laws 165 

Legal advice 108 

Legal representatives of parties 

to contract 69, 106 

Letting work among several con- 
tractors, disadvantages of. 148 

Levels , 27 

Lex loci ri, 102 

Lien laws 165 

Liens, discharge of 16 

Lighthouse 34 

Description 34 

Dwelling house 37 

Foundations 35 

Pile driving 35 

Spiral stairs 36 



rage 

Substructure 35 

Woodwork 38 

Limits of the ^vork to be defined 133 

Lines and levels 27 

Liquidated damages 32 

In contracts 71, SO 

Litigation, notification of 21 

Loading metal work on vessel . . 44 

Locality, advantage of 5 

Market, advantage of 5 

Married women G7 

Materials : 

Acceptance of defective 141 

Approximate quantities 22 

Care of delivered 19 

Cement 30 

Concrete . 29 

Delivery of 85 

Hauling of 22, 27 

Metals 23 

Old and new 21 

Rejected by engineer 140 

Removal of 21 

llewrought 24 

Shipping 27 

Title to 77 

Workmanship on 25 

Medical attendance 83 

Membership organization 66 

Mistakes of engineer 9 

Negligence 78 

Indemnity for 75 

Notification of impending suits. 21 

Obstructions or obstacles, unfore- 
seen 25 

Painting : 

I'rotection of pipes by ........ 46 

Steel pier 42 

I'aints for steel pier 43 

I'apers, return of 18 

Parties to contracts 65, 66. 67 

Incompetent 67 

Legal representatives of 166 

Payments on contracts 72 

For work 16 

Monthly estimates 17 

Percentage retained 17 

Progress 16 

Pay-rolls 85 

Penalties in contracts 32, 71 

Personal service, contracts for. . 69 
Piers : 

Concrete 29 

Specifications for steel 89 

Pile driving, lighthouse 35 

Pile foundations 29 



I'ago 

I'iles for steel pier 40, 41 

Piling 29 

I'ipe line, specifications for.... 45 

Plans : 

Alteration of 15 

At variance with drawings... 133 

Conflict of with contract 133 

Prepared by contractor 3 

Understanding of 137 

Utility of 2 

Plant, definition of 82 

Powers of engineer defined 138 

Preambles of contracts 68, 70 

Precision 8 

Prices : 

Schedules of 77 

Unit 34 

I'rior negotiations S 

I'rofessional service, contracts 

for 72 

Progress of work Si; 

I'rogress payments 1(5 

Promoter's agreement 89 

I'roof of contract 168 

I'roposals 33 

Protection of pipes 46 

Pumping from excavations 29 

launching of steel work 25, 26 

Punctuation of contract i;')5 

Reaming punched holes in steel 

work 2() 

Rejection of work and materials 

by engineer 140 

Release of sureties 157 

Repairs 82 

Replacement of destroyed ma- 
terial 85 

Responsibility for errors in draw- 
ings 12 

Restrictions imposed on corpora- 
tions, legislative 164, 165 

Result to be specified 148 

Results, when wanted 5 

Retained percentage of payment 87 

Right of way 86 

Risks 28 

Riveting, field 26 

Scope of contract 21, 61, 131 

Shipping : 

Materials 27 

Metal work on vessel 43 

Shop drawings 13 

Signature of contract 75 

Acknowledgment of 76 



Page 

Single arbitrator 162 

Specialists 4 

Specifications : 

Adhei-ence to 10 

Against engineers decision.. 138 

Alterations in 11 

And plans, provision in for re- 
sult or complete structure. 148 
Application of to extra work. 145 

( 'lianges in, effect of 11 

Conclusive 4 

Conflict between contractor's 

judgment and 143 

Conflict of with co-contractor's 

work 144 

Conflict of with contract 133 

Construction of 146 

Contents of 132 

Definition of 2 

Engineer's duty to follow. . . . 139 

(Jeneral and special provisions 

Good 4 

Intent or spirit of 3 6 

Language of 6 

Of results 3 

Preparation of 2 

I*urpose of 3 

Scope of 61 

To be created 132 

What are the? 132 

Work in accordance with. 136, 144 

Ultimate object 

Specific clauses 21 

Steel and iron 23, 24 

Structure, acceptance of 141 

Subletting of work 78, 86, 150 

Forbidden in contracts 20, 73 

Sunday laws 108 

Surety 18 

Release of 74, l."')7 

Tamping concrete 30 

Temporary works 22 

Tenders 33 

Testing materials : 

Cement 31 

Steel and iron 24, 25 



Page 

Thoroughfares, closing 15 

Time : 

Extension of 19 

Of essence in contracts. . . .76, 153 

Titles 10 

Tools and supplies 84 

TraflBc, interference with 23 

Transportation : 

Of men and materials 22, 27 

Of metal work by vessel 44 

Travel, expenses for 83 

L'ltra vires 66 

Understanding of plans 137 

Undertaking 76, 77 

Unsealed contract (specialty) . . 75 

Validity of contract as affected 

by alterations 15Ti 

Variance: plans vs. drawings.. 133 

Verification of drawings 12 

Vouchers . . 84 

Wa iver 77 

Of contract clauses 155 

War, effect on contracts 67 

Warranty of work 137 

Implied 136 

Witnesses to contract 75, 168 

Woodwork for dwelling house . . 38 

Work : 

Abandonment of 17 

Acceptance of defective 141 

According to specifications. . . . 136 
And material rejected by en- 
gineer 140 

At cost-plus-a-percentage or 

fixed sum 14?) 

Completion by owner 17 

Implied warranty of 136 

Limits to be defined 133 

Payments for 16 

Subletting of 159 

To satisfaction of owner 144 

Workmanship 25 

Written vs. printed parts of con- 
tract 135 



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